En Banc (G.R. No. 163556, June 08, 2004)

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G.R. No. 163556, June 08, 2004 ]
EN BANC
[ G.R. No. 163556, June 08, 2004 ]
CONG. RUY ELIAS C. LOPEZ V. SENATE OF THE PHILIPPINES
[REPRESENTED BY FRANKLIN DRILON, PRESIDENT OF THE SENATE],
HOUSE OF REPRESENTATIVES, ET AL.
Gentlemen:
Quoted hereunder, for your information, is a resolution of the Court En Banc dated June 8,
2004
G.R. No. 163556 CONG. RUY ELIAS C. LOPEZ v. SENATE OF THE PHILIPPINES
[represented by Franklin Drilon, President of the Senate], HOUSE OF
REPRESENTATIVES, et al.
RESOLUTION
Before the Court is a Petition for prohibition and mandamus seeking to nullify Section 13,
Rule VIII of the Rules of the Joint Public Session of Congress, dated May 28, 2004, creating
a Joint Committee which shall preliminarily canvass the votes of the candidates for
President and VicePresident during the May 10, 2004 elections.
At the outset, the Court stresses that it has jurisdiction over the subject matter of this
controversy, because the herein Petition contains sufficient allegations claiming violations
of the Constitution. Basic is the rule that jurisdiction is determined by the allegations of the
initiatory pleading, like the complaint or petition.
However, after careful deliberation on the merits of the Petition and the Comments filed by
Senate President Franklin M. Drilon, Speaker Jose C. De Venecia and the Office of the
Solicitor General, the Court RESOLVES to DISMISS the Petition on the ground that it
failed to show that Congress gravely abused its discretion in creating such Joint
Committee.
Section 4, Article VII of the Constitution expressly empowers Congress "to promulgate its
rules for the canvassing of the certificates." In Arroyo v. De Venecia (277 SCRA 268,
August 14, 1997), the Court ruled that it had no power to review the internal proceedings
of Congress, unless there is a clear violation of the Constitution. Likewise, Santiago v.
Guingona, (298 SCRA 756, November 18, 1998) held that the Court under the doctrine of
separation of powers has "no authority to interfere" in the "exclusive realm" of a co
equal branch, absent a showing of grave abuse of discretion. The Court has no authority to
restrict or limit the exercise of congressional prerogatives granted by the Constitution.
The creation of the Joint Committee does not constitute grave abuse and cannot be said to
have deprived petitioner and the other members of Congress of their congressional
prerogatives, because under the very Rules under attack, the decisions and final report of
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the said Committee shall be subject to the approval of the joint session of both Houses of
Congress, voting separately (See Sections 19, 23, 24 and 27 of the Rules).
WHEREFORE, the Petition is DISMISSED. No costs.
SO ORDERED.
(As aboveworded, the foregoing Resolution was approved unanimously, 14 to 0, by the
Court. In addition, individual opinions, copies of which are attached hereto, were written by
Chief Justice Hilario G. Davide, Jr.; Justice Reynato S. Puno, joined by Justices Angelina
SandovalGutierrez, Justice Romeo J. Callejo, Sr. who concurs in a Separate Opinion, and
Adolfo S. Azcuna; Justice Leonardo A. Quisumbing; Justice Conchita Carpio Morales;
Justice Romeo J. Callejo, Sr. and Justice Dante O. Tinga.)
Very truly yours,
(Sgd). LUZVIMINDA D. PUNO
Clerk of Court
SEPARATE OPINIONS FOLLOW.

[ G.R. No. 163556. June 8, 2004 ]
CONGRESSMAN RUY ELIAS C. LOPEZ VS. SENATE OF THE PHILIPPINES
(REPRESENTED HEREIN BY THE HON. FRANKLIN DRILON, PRESIDENT OF THE
SENATE), HOUSE OF REPRESENTATIVES (REPRESENTED HEREIN BY THE HON. JOSE
DE VENECIA, SPEAKER OF THE HOUSE OF REPRESENTATIVES), JOINT COMMITTEE
OF CONGRESS TO CANVASS THE VOTES CAST FOR PRESIDENTIAL AND VICE
PRESIDENTIAL CANDIDATES IN THE MAY 10, 2004 NATIONAL ELECTIONS, THE
CHIEF FINANCIAL OFFICER AND CHIEF BUDGET OFFICER OF THE SENATE, AND THE
CHIEF FINANCIAL OFFICER AND CHIEF BUDGET OFFICER OF THE HOUSE OF
REPRESENTATIVES

SEPARATE OPINION
DAVIDE, JR., C.J.:
In his petition for prohibition and mandamus filed on 2 June 2004, Ruy Elias C. Lopez,
Representative representing the 3rd Legislative District of the City of Davao, asks this
Court to declare unconstitutional the Rules of the Joint Public Session of Congress on
Canvassing the Votes Cast for Presidential and VicePresidential Candidates in the May 10,
2004 Elections (hereafter, Canvassing Rules), which the Senate and the House of
Representatives, in joint session, approved, after much debate, on 28 May 2004.
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Petitioner alleges that the Canvassing Rules was adopted by both Houses of Congress with
grave abuse of discretion amounting to lack or excess of jurisdiction, and that he had no
other plain, speedy, and adequate remedy other than this petition. He requests the Court
to issue a temporary restraining order directing Respondents to cease and desist from
implementing, executing, and/or enforcing the Canvassing Rules.
In the resolution of 4 June 2004, the Court, by a unanimous vote, denied the application for
a temporary restraining order, and by a vote of 94 required Respondents and the Solicitor
General to comment on the petition by 12 noon on Monday, 7 June 2004. The Senate, the
House of Representatives and the Office of the Solicitor General seasonably filed their
separate comments.
The prefatory statement of petitioner summarizes the main arguments found throughout
his petition:
Under our constitutional system, the powers of government are distributed
among three (3) independent branches of government. The very important and
delicate power and authority to open all certificates of canvass of votes for
Presidential and VicePresidential and VicePresidential Candidates are solely
and exclusively vested by the Constitution in the President of the Senate, just
as the very important and delicate power and authority to determine the
authenticity and due executions (sic) of all certificates of canvass and to
canvass the votes cast for Presidential and VicePresidential Candidates are
solely and exclusively vested by the Constitution in the Congress as one whole
body." Any attempt to delegate these powers or a portion thereof to any other
person or entity — whether within or without the Congress — is unconstitutional
on the principle that potestas delegata non potest delegari.[1]
Petitioner thus contends that the Canvassing Rules are unconstitutional because: 1) It
constitutes a delegation of legislative power to a Joint Committee of Congress; 2) It
constitutes an amendment of Section 4, Article VII of the Constitution; 3) It deprives him
of his rights and prerogatives as a Member of Congress; and 4) By the passage of the
Canvassing Rules, Congress has neglected to perform an act which the Constitution
specifically enjoins as a duty resulting from office.
The arguments of respondents, the Solicitor General, the Senate, and the House of
Representatives, are similar in that they agree that the adoption of the Canvassing Rules
are internal matters of Congress which is beyond this Court's scope of judicial inquiry. They
are likewise unanimous in their argument that there has been no invalid delegation to the
Joint Committee of the Constitutional duties of Congress.
This Court's jurisdiction over the issue raised in this case is founded on Section l of Article
VIII of the Constitution which provides that judicial power includes the duty "to determine
whether or not there has been grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government". This duty does
not do away with the "political question" doctrine. It only clarifies it by limiting it to its
definition laid down in Tañada v. Cuenco[2]. That case defines political questions as those
"which, under the Constitution, are to be decided by the people in their sovereign capacity,
or in regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government." The clarification became necessary because prior to
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the 1987 Constitution, as long as an act or measure was invoked as involving a political
question, the courts affirmed such invocation rather than risk the separation of powers.
The result, then, was that the legality of an act or measure was likewise left to the political
branch in question.[3]
Thus, now plainly stated in the 1987 Constitution, the mere invocation of a political
question does not warrant an immediate or summary dismissal of a case. It falls, as it
always has, within judicial power to determine for itself whether the legality and the limits
of the exercise of a power have been observed and respected.
The contested provisions of the Canvassing Rules pertain to the functions of the Joint
Committee, as follows:
SEC. 13. A Joint Committee shall be created composed of eleven (11) members
from the Senate to be appointed by the President of the Senate and eleven (11)
members from the House of Representatives to be appointed by the Speaker.
The Members of Each House panel shall elect from among themselves their
respective Chairman in the Joint Committee. The Joint Committee may sit en
banc or, in its discretion, in two division of eleven (11) members each composed
of a chairman, five (5) members from the Senate and five (5) members from the
House of Representatives: Provided, That a member of Congress who is a
candidate for President or VicePresident shall not be eligible for appointment to
the Joint Committee. Each division shall be chaired by a Chairman of the Joint
Committee.
The Joint Committee shall, upon determination of the authenticity and due
execution of the certificates of canvass, preliminarily canvass the votes of
candidates for the offices of the President and VicePresident.
The Representatives of the province or city whose certificate of canvass is being
canvassed shall be an ex officio member of the Joint Committee, without voting
rights, for the duration of the canvassing of the aforesaid certificate of canvass.
It is petitioner's position that the formation of a Joint Committee, which determines the
authenticity and due execution of the certificate of canvass of the Presidential and Vice
Presidential candidates and thereafter canvasses the votes, is a transfer or surrender to an
entity of a duty imposed by the Constitution exclusively upon Congress as a whole body —
that is, "in joint public session assembled.[4] Accordingly, petitioner claims that such
transfer violates the principle that a delegated power cannot again be delegated,[5]
potestas delegata non delegari potest.
The source of the duty of Congress to act as the National Board of Canvassers for the
office of the President and VicePresident is in paragraph 4, Section 4, Article VII of the
Constitution, which provides:
The returns of every election for President and VicePresident, duly certified by
the board of canvassers of each province or city, shall be transmitted to the
Congress, directed to the President of the Senate. Upon receipt of the
certificates of canvass, the President of the Senate shall, not later than thirty
days after the day of the election, open all certificates in the presence of the
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Senate and the House of Representatives in joint public session, and the
Congress, upon determination of the authenticity and due execution thereof in
the manner provided by law, canvass the votes.
It is true that where the Constitution has vested powers in a branch of government there
can be no further delegation of such authority by that branch to any other body. Originating
from the law on agency, the principle has evolved in Constitutional law as a natural
corollary to the separation of governmental powers.[6] Thus, the foundation of the principle
of potestas delegata non delegari potest in Constitutional law lies in the sovereignty that
resides in the people from which all governmental authority emanates.[7] It is invoked as a
prohibition against the three major branches of government — the executive, legislative, or
the judiciary — from transferring the powers and duties conferred by the people upon it to
another branch; neither does it allow any branch to invest in itself or its members the
powers and duties belonging to another.[8]
Moreover, there is no distinction as to what kind of power is delegated by the Constitution.
Although the three branches of government each have its general functions in accordance
with the principle of separation of powers, the system of checks and balances imposes
upon each branch or its members — powers outside of its usual functions.[9] Thus, even
when the legislature is performing a nonlegislative act as a National Board of Canvassers,
its inability to delegate such function to another branch of government remains intact.
In this context, the principle does not apply in this case insofar as no other branch of
government has been tasked with the duties of Congress as a National Board of
Canvassers.
As to whether there has been an invalid delegation of power "within" Congress, such
argument, and the basis of petitioner's discussion, is an imprudent one. From a cursory
reading of the Canvassing Rules, it can readily be seen that there has been no delegation
or abdication of any Constitutional authority, even within Congress itself. Key provisions
throughout the Canvassing Rules reveal the nature of the Joint Committee and its relation
to the duties of Congress, whether referring to the determination of the authenticity and
due execution of the certificates of canvass or the canvassing of the votes itself. Some of
these provisions, however, are conveniently omitted by petitioner in his arguments. For
one, Section 19 thereof provides:
Sec. 19. The Joint Committee, whether en banc or in divisions, shall decide any
question involving the Certificate of Canvass by a majority vote of its Members,
each House panel voting separately. Any such decision shall be subject to
approval by the joint session, the Senate and House of Representatives voting
separately. In case the two Houses disagree, the decision of the President of the
Senate, in consultation with the Speaker of the House of Representatives, shall
prevail." [Emphasis supplied]
As to the canvassing of votes, paragraph 2, of Sec. 13 provides that "[t]he Joint
Committee shall, upon determination of the authenticity and due execution of the
certificates of canvass, preliminarily canvass the votes of candidates for the offices of
President and VicePresident." And again, in Sec. 23, the final report of the Joint
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Committee "shall be submitted by the Joint Committee en banc to the joint public session
for its approval, each House voting separately.”
Further, in Section 27, we find that:
Upon termination of the canvass and approval of the Joint Committee report and
the accompanying resolution by majority of all the Members of both Houses
voting separately in the joint public session, Congress through the President of
the Senate and the Speaker of the House of Representatives shall forthwith
proclaim the Presidentelect and the "VicePresidentelect. [Emphasis supplied]
Since the Canvassing Rules subjects the acts of the Joint Committee to the affirmation of
Congress, the Committee's report is preliminary and recommendatory in nature.
The Canvassing Rules leaves to both Houses of Congress, as an entire body, the final act of
determining the authenticity in the manner provided by law, and due execution of the
certificates of canvass, and the proclamation of the Presidentelect and VicePresident
elect.
Anent to his argument that the Canvassing Rules is an unlawful delegation of power,
petitioner claims that the creation of the Joint Committee deprives him of his rights and
prerogatives as a member of Congress to be present during the canvassing of genuine
certificates of canvass, and to participate in its deliberations. He argues that by excluding
him from the proceedings, the Canvassing Rules likewise deprives his constituents the
sovereign people of representation and a voice in the affairs of government.
Unfortunately, petitioner once again relies on his misreading of the Canvassing Rules. The
fact that the findings of the Joint Committee are subject to a final act of Congress, then, by
casting his vote and declaring his approval or disapproval of the final report, petitioner
exercises his prerogatives as a Member of Congress. By claiming a sovereign duty to be
present in all stages of the proceedings, petitioner confuses his rights as a Member of the
Congress with the powers given to Congress itself.
Under the Constitution, it is Congress that, in accordance with the law and its rules,
canvasses the certificates of canvass certified by the Boards of Canvassers of provinces
and cities after determining their authenticity and due execution in the manner provided by
law. Being a member of Congress, his participation is likewise determined by the internal
rules of congressional proceedings, and, in general, is determined by his vote. The quality
of his participation is determined by such means as Congress deems fit to ensure the use
of discretion when his vote is cast.
As for the Canvassing Rules itself, petitioner's third argument is that Congress amends the
Constitution by investing itself with powers beyond what was granted therein. He cites the
three constitutional functions of Congress as a National Board of Canvassers: l) the
opening by the President of the Senate of all the certificates of canvass in the presence of
the Senate and House of Representatives in joint public session; 2) the determination of
the authenticity and due execution of the certificates of canvass; and 3) the canvassing of
votes based on said certificates. It is his observation that with the enumeration of these
three duties, the Constitutional mandate is specific, thereby foreclosing the need for
implementing or procedural rules. The argument is bereft of merit.
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The authority of Congress to adopt its own rules of procedure under par. (3), Sec. 16, Art.
VI[10] is a right that has been recognized to apply regardless of whether Congress is
exercising its legislative power or its other duties, such as in this case when it acts as the
National Board of Canvassers.[11]
Here, apart from the general authority of Congress to promulgate its internal rules, the
Constitution itself specifically leaves it to Congress to determine the conditions and
procedures of fulfilling its duty as a National Board of Canvassers. The sixth paragraph of
Section 4, Article VII of the Constitution, plainly and clearly states: "The Congress shall
promulgate its rules for the canvassing of certificates."
The reason for the insertion of this provision, and its relation to the determination of the
authenticity and due execution of the certificates of canvass, was likewise explained during
the deliberations of the 1987 Constitutional Commission:
MR. DAVIDE. On page 2, between lines 22 and 23, I propose to insert a new
paragraph to read as follows: CONGRESS SHALL PROMULGATE ITS RULES FOR
THE CANVASSING OF THE CERTIFICATES.
MR. SUMULONG. Will Commissioner Davide repeat the proposed amendment?
MR. DAVIDE. CONGRESS SHALL PROMULGATE ITS RULES FOR THE CANVASS OF
THE CERTIFICATES.
THE PRESIDENT. Is this accepted by the Committee?
MR. REGALADO For the benefit of the other Commissioners, will Commissioner
Davide explain this proposal?
MR. DAVIDE: This is necessary in order that Congress will have the authority
now to promulgate the necessary rules for the canvassing of the certificates of
canvass for the Offices of the President and the VicePresident.
MR. REGALADO: How will that tie up with line 16 regarding the determination of
the authenticity and due execution of the certificates of canvass in the manner
provided by law?
MR. DAVIDE: That is entirely a different matter, Madam President, because it
would relate to the rules concerning the determination of the authenticity and
due execution thereof, whereas the other one would be the rules of procedure.
[12] [Emphasis supplied]
As regards the determination of authenticity and due execution of the certificates of
canvass, the scope of the duty of Congress is to be defined by a law to be enacted by it.
This was made clear during the deliberations of the Constitutional Commission explaining
the inclusion of this provision in the 1987 Constitution, thus:
MR. MAAMBONG. ...The Committee had to insert the phrase "in the manner
provided by law" so that the legislature itself will find out and will make it very
specific as to what flaws or deficiencies in the certificates of canvass can be
taken cognizance of by the canvassing board of tellers, because as of now the
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guiding regulations that govern the National Assembly, as I mentioned in the
Committee, are: the rules and regulations of the COMELEC, the Omnibus Election
Code, the jurisprudence from the decisions of the Supreme Court. All these
things taken together, the legislature is given a notice by using the phrase "in
the manner provided by law," so that it will make a determination now of what
are the points which the board of tellers can take cognizance of, because it is
not very clear, right now under the laws and regulations, and as a matter of
fact, that was one of the controversies which arose during the canvassing of the
votes of President Aquino and former President Marcos in the last Batasan.[13]
[Emphasis supplied]
The law referred to is R.A No. 7166,[14] which was enacted on 26 November 1991. Section
30 thereof provides the flaws over which Congress would take cognizance, as well as the
manner by which it would do so, thus:
Sec. 30. Congress as the National Board of Canvassers for the Election of
President and VicePresident: Determination of Authenticity and Due
Execution of Certificates of Canvass. Congress shall determine the
authenticity and due execution of the certificate of canvass for President and
VicePresident as accomplished and transmitted to it by the local boards of
canvassers, on a showing that: (1) each certificate of canvass was executed,
signed and thumbmarked by the chairman and members of the board of
canvassers and transmitted or caused to be transmitted to Congress by them;
(2) each certificate of canvass contains the names of all of the candidates for
President and VicePresident and their corresponding votes in words and in
figures; and (3) there exists no discrepancy in other authentic copies of the
certificate of canvass or discrepancy in the votes of any candidate in words and
figures in the certificate.
When the certificate of canvass, duly certified by the board of canvassers of
each province, city or district, appears to be incomplete, the Senate President
shall require the board of canvassers concerned to transmit by personal
delivery, the election returns from polling places that were not included in the
certificate of canvass and supporting statements. Said election returns shall be
submitted by personal delivery within two (2) days from receipt of notice.
When it appears that any certificate of canvass or supporting statement of votes
by precinct bears erasures or alterations which may cast doubt as to the
veracity of the number of votes stated therein and may affect the result of the
election, upon request of the Presidential or VicePresidential candidate
concerned or his party, Congress shall, for the sole purpose of verifying the
actual number of votes cast for President and VicePresident, count the votes as
they appear in the copies of the election returns submitted to it.
Contrary to petitioner's argument, therefore, whether Congress deems it fit to require its
entire membership to examine each certificate of canvass, raise their comments and
objections thereto, or engage in parliamentary debate before reaching its conclusions, or
else leave preliminary matters to be discussed and argued according to different rules,
must be left to the wisdom of Congress. So long as the ultimate power to canvass remains
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lodged in the body tasked to perform it, congressional rules adopted to address matters of
expediency or the orderly conduct of proceedings is precisely the purpose of such rules.[15]
Congress remains the body exercising its canvassing duties, and delegating preliminary
determinations to expedite proceedings. Where the rules of Congress have thus been
passed within the limits of constitutional and legal boundaries, everything else remains
internal and procedural, and to which petitioner is bound. As procedural rules, "[t]hey may
be waived or disregarded by the legislative body.’ Consequently, mere failure to conform to
parliamentary usage will not invalidate the action (taken by a deliberative body) when the
requisite number of members have agreed to a particular measure.[16]
In claiming that the creation of a Joint Committee is an unlawful delegation of authority,
petitioner asserts that the determination of the authenticity and due execution of
certificates is a function that requires the exercise of discretion on the part of the individual
members of Congress. He implies that a ministerial function can be delegated whereas the
determination of the authenticity and due execution, being more than ministerial, cannot.
The distinction is facetious since petitioner argues throughout his petition that none of the
duties of Congress under par. 4, Sec. 4, Art. VII of the Constitution can be delegated
"whether within or without" Congress.
On the contrary, respondents argue extensively that the nature of canvassing, as well as
determining the authenticity and due execution of the certificates of canvass, are
ministerial functions, which can be delegated in any case.
The difference between a ministerial and discretionary function was amply cited in the
Comment of Respondent Senate:
Discretion, when applied to public functionaries, means a power or right
conferred upon them by law of acting officially, under certain circumstances,
according to the dictates of their judgments and consciences, uncontrolled by
the judgments or consciences of others. A purely ministerial act or duty, in
contradistinction to a discretional act, is one which an officer or tribunal
performs in a given state of facts, in a prescribed manner, in obedience to the
mandate of legal authority, without regard to or the exercise of his own
judgment, upon the propriety or impropriety of the act done. If the law imposes
a duty upon a public officer, and gives him the right to decide how or when the
duty shall be performed, such duty is discretionary and not ministerial. The duty
is ministerial only when the discharge of the same requires neither the exercise
of official discretion nor judgment."[17]
Referring, once again, to the deliberations of the Constitutional Commission:
MR. NOLLEDO. I am referring to the use of the words "upon determination of the
authenticity and due execution thereof" on lines 7 and 8, page 2, referring to the
certificates of canvass of the President and VicePresident. Am I right if I say
that because of the use of these words, the duty of the legislature to canvass is
no longer ministerial?
MR. MAAMBONG. Madam President, the word "ministerial” has always been
interpreted by the Supreme Court as applicable to the canvass made by the
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National Assembly, and the reason why we did not put the word "ministerial" in
the Article is, it has been understood in the case of Lopez v. Roxas and in other
cases. When we used the words "authenticity" and "genuineness,” the question
refers to the problem of whether or not the ministerial function is already
nonministerial. The answer is, it is still ministerial but when we say "authenticity
and "due execution," what it really means is that the National Assembly will look
at the certificates of canvass and find out from the face of the document
whether there are flaws in the execution and authenticity of the document. That
is what it means.
MR. NOLLEDO. Madam President, in the event that the legislature finds out that
there are serious defects in the certificates of canvass — as when the seals are
broken, there are a lot of erasures and then many of them are unsigned and,
therefore, authenticity appears to be questionable — what will happen?
MR. REGALADO: The answer to that is in the phrase "in the manner provided by
law...."[18] [Emphasis supplied]
Indeed, the inclusion in the 1987 Constitution of the duty of Congress to be the National
Board of Canvassers for the election of the President and the Vice President meant that
Congress was to have expanded powers. These expanded powers did not necessarily mean
that the nature of the power changed from a ministerial to a discretionary one. However,
nor can the power of Congress to determine authenticity and due execution of the canvass
of votes be deemed purely ministerial, as whether there has been tampering or not, or, as
according to Sec. 30 of R.A. No. 7166, or determining when there is 'doubt' requires some
degree of discretion.
The distinction made in Lopez v. Roxas [19] was a distinction made between the duties of

Congress and that of the Presidential Electoral Tribunal, the latter charged with judging all
contests relating to the election, returns, and qualifications of the Presidential and Vice
Presidential candidates, under Section 1, R.A. No. 1793:
Needless to say, the power of congress to declare who, among the candidates
for President and/or VicePresident, has obtained the largest number of votes, is
entirely different in nature from and not inconsistent with the jurisdiction vested
in the Presidential Electoral Tribunal by Republic Act No. 1793. Congress merely
acts as a national board of canvassers, charged with the ministerial and
executive duty to make said declaration, on the basis of the election returns
duly certified by provincial and city boards of canvassers. Upon the other hand,
the Presidential Electoral Tribunal has the judicial power to determine whether
or not said duly certified election returns have been irregularly made or
tampered with, or reflect the true result of the elections in the areas covered by
each, and, if not, to recount the ballots cast, and, incidentally thereto, pass
upon the validity of each ballot or determine whether the same shall be counted,
and, in the affirmative, in whose favor, which Congress has power to do."[20]
Thus, while petitioner correctly maintains that the 1987 Constitution sought to expand the
power of Congress by requiring it to determine the genuineness of the certificates of
canvass, the act of discretion was done upon determining the rules of authenticity and due
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execution. That accomplished, the National Board of Canvassers could only act within the
parameters and according to the criteria specifically provided by the law.
Nevertheless, even if, for purposes of argument, the determination of the authenticity and
due execution of the certificates of canvass were more than a ministerial function, the
Canvassing Rules, as discussed earlier, does not delegate nor abdicate such determination
to the Joint Committee, nor for that matter any of the other duties Congress prescribed
under Sec. 4, Art. VII. Therefore, discussion on the accusation against Congress regarding
its neglect of duty because of the adoption of its Canvassing Rules would now be
superfluous.
What remains for petitioner, as a member of Congress and a representative of his
constituents, is in the opportunities to make the informed judgments provided by the
Canvassing Rules itself. The Canvassing Rules provides safeguards, which would enable
petitioner to responsibly perform his individual duty as a Member of Congress and properly
represent the interests of his constituents. A declaration of yea and nay or the raising of
hand to express protest or approval is a diminished prerogative only when it is not
exercised with the full weight of the trust of the people and the powers of reason and
conscience.
Finally, the challenged Canvassing Rules is similar, for the most part, to the Canvassing
Rules for the Presidential and Vice Presidential Election of 1998[21]. That canvassing Rules
was unanimously approved by the Senate and the House of Representatives at its joint
session. In attendance at that session were Senators, some of whom are now incumbent
Senators Edgardo Angara, Gregorio Honasan, Sergio Osmena III and Vicente Sotto III[22],
and opposition Representatives Bellaflor AngaraCastillo, Didagen Dilangalen and Rolando
Zamora, among others [23]. Indeed, I cannot understand why an almost the same Rules is
now assailed on constitutional grounds. I cannot likewise understand why Congress should
promulgate separate Canvassing Rules for every Presidential elections. It should have
promulgated one set of Canvassing Rules for all such elections, thereby ensuring stability
and avoiding delays and confusion in future Presidential elections.
WHEREFORE, I vote to dismiss the petition for its utter failure to show that the Rules of
the Joint Public Session on Congress on Canvassing the Votes for Presidential and Vice
Presidential abuse of discretion by both the Senate and the House of Representatives in
joint session.
[1] Petition, p.2 [emphasis supplied].
[2] 103 Phil. 1051, 1068 [1957].
[3] Javellana v. Executive Secretary, L35154, 31 March 1973, 50 SCRA 30, 84, citing In re
McConaughy, 119, N.W. 408, 417.
[4] Petition, p. 12, citing 2 Records of the Constitutional Commission 419 [hereinafter
RECORDS].
[5] Black's Law Dictionary, 5th ed., 1979.
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[6] People v. Vera, 65 Phil 56, 112113 [1937].
[7] Sec. 1, Article II, 1987 Constitution.
[8] U.S. v. Hampton, 276 US 394 [1928]. See also Echegaray v. Secretary of Justice, G.R.
No. 13260, 12 October 1998, 297 SCRA 754; People v. Rosenthal, 68 Phil. 328 [1939].
[9] Throughout the Constitution are examples of such encroachment, such as in the House
of Representatives, Senate, or Presidential Electoral Tribunals, with members from their
respective Houses as well as from the Supreme Court, or else when the President
exercises the veto power regarding legislation.
[10] Each House may determine the rules of its proceedings, punish its Members for
disorderly behavior, and with the concurrence of twothirds of all its Members, suspend or
expel a Member. A penalty of suspension, when imposed shall not exceed sixty days.
[Emphasis supplied]
[11] Discussing the authority of Congress to provide its rules of proceedings, Justice
Vicente V. Mendoza in Arroyo v. De Venecia, (G.R. No. 127255, 14 August 1997, 277 SCRA
268), cites Crawford v. Gilchrist, 13 64 Fla. 41; 59 So. 963, 968 [1912], where it was held:
"The provision that each House shall determine the rules of its proceedings does not
restrict the power given to a mere formulation of standing rules, or to the proceedings of
the body in ordinary legislative matters; but in the absence of constitutional restraints, and
when exercised by a majority of a constitutional quorum, such authority extends to a
determination of the propriety and effect of any action as it is taken by the body as it
proceeds in the exercise of any power, in the transaction of any business, or in the
performance of any duty conferred upon it by the Constitution."[Emphasis supplied]. See
also United States v. Ballin, Joseph & Co., 79 Conn. 141, 64 Atl. 5, 910 [1906]: "The
Constitution empowers each house to determine its rules of proceedings....The power to
make rules is not one which once exercised is exhausted. It is a continuous power, always
subject to be exercised by the House, and within the limitations suggested, absolute and
beyond the challenge of any other body or tribunal."
[12] 2 RECORDS at 433.
[14] Republic Act No. 7166, An Act Providing for Synchronized National and Local Elections
and For Electoral Reforms, Authorizing Appropriations Therefor, and Other Purposes, 26
November 1991.
[15] See Tolentino v. Secretary of Finance, G.R. No. 115455, 25 August 1995, 235 SCRA,
666672 where it was held that amendments to bills proposed by conference committees
held in executive session that were not found in the original bills approved by the House of
Representatives or the Senate, were deemed valid because they were "[o]ften the only
way to reach agreement on conflicting provisions… with only the conferees present.
Otherwise, no compromise is likely to be made." Regardless, such amendments were
deemed valid as they could only be passed with the approval of Congress.
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[16] Osmeña v. Pendatun, 109 Phil. 863, 871, citing 67 Corpus Juris Secundum 870.
[17] Citing Sanson v. Barrios, 63 Phil. 198.
[19] 124 Phil. 168.
[20] Id, at p. 182.
[21] Record and Journal of the Joint Session of Congress as National Board of Canvassers,
Tenth Congress of the Philippines.
[22] Id, 1.
[23] Id, 1 & 2.

[ G.R. No. 163556. June 8, 2004 ]

CONGRESSMAN RUY ELIAS C. LOPEZ VS. SENATE OF THE PHILIPPINES
REPRESENTATIVES

SEPARATE OPINION

PUNO, J.:
The facts are sparse but sufficient. We held our national election last May 10, 2004. The
candidates for President were President Gloria MacapagalArroyo, actor Fernando Poe, Jr.,
Senator Panfilo Lacson, former Secretary of Education Raul Roco, and religious leader
Bishop Eddie Villanueva. The candidates for VicePresident were Senator Noli de Castro,
Senator Loren Legarda, former Congressman Herminio Aquino and Mr. Rodolfo Pajo.
Congress thereafter convened itself in joint session to canvass the results of the
Presidential and VicePresidential elections. It approved the Rules of the Joint Public
Session of Congress on Canvassing Votes for the Presidential and VicePresidential
Candidates in the May 10, 2004 Elections.
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On May 2, 2004, petitioner, a member of the House of Representatives representing the 3rd
Legislative District of the City of Davao, filed the instant petition for prohibition and
mandamus with prayer for issuance of a status quo ante order, temporary restraining order
and writ of preliminary injunction. He assailed said Rules as constitutionally infirmed
allegedly because they: (1) constitute an unconstitutional delegation of legislative power
to a Joint Committee of Congress; (2) constitute an unconstitutional amendment of Article
VII, Section 4 of the Constitution; (3) constitute an unconstitutional deprivation and
derogation of his rights and prerogatives as a member of the House of Representatives;
and (4) by the passage of the Rules, Congress has unlawfully neglected the performance of
an act which the Constitution specifically enjoins as a duty resulting from office.
In their respective Comments, public respondents defended the validity of their act. The
Senate, represented by the President of the Senate, Honorable Franklin M. Drilon, submits
that the Legislature's formulation and implementation of its own rules affecting its internal
operation are beyond the ambit of judicial scrutiny. And, contrary to petitioner's
contention, the Rules are in complete accord with the Constitution as they do not remove
from Congress the power to determine the authenticity and due execution of the
certificates of canvass and to canvass the votes of the candidates for President and Vice
President, which power is still reposed in Congress as a whole, nor do they curtail the
rights and prerogatives of any member of Congress to participate in the canvassing.
Neither does the creation of the Joint Committee constitute an undue delegation of a
legislative function since the canvassing of votes is not an exercise of the legislative
function of Congress. In fine, the Senate President believes that the instant petition is a
mere disguised attempt to change the rules and delay the canvassing of votes.
Respondent House of Representatives, through the Speaker of the House of
Representatives, Honorable Jose C. De Venecia, maintains that the constitutional grant of
the power to canvass the votes for the President and the VicePresident and the
corresponding mandate to formulate its own rules of procedure authorize Congress which
has the sole discretion to create a Joint Committee to preliminarily canvass the votes to
expedite the proceedings. Similarly, the Speaker is of the view that the creation of the
Joint Committee is not violative of the wellknown maxim delegata potestas non delegari[1]
which finds application only when what is delegated is legislative power, and not an
electoral function such as canvassing of votes.
The Solicitor General argues that the constitutionality of the act of Congress in assigning
the preliminary canvassing of votes for President and VicePresident is a political question.
It is Congress, and not the Judiciary, which gets to decide what procedures are proper in
this circumstance. And, while the Constitution assigns to Congress the power to canvass
the votes, it does not mean that the whole Congress, as a body, should actually canvass
the votes. Congress has the discretion to follow its previous practice of using a joint
committee to canvass the certificates of canvass and does not abdicate its power because
the Joint Committee, apart from being a part thereof, will just come out with a final report
which will be submitted to the whole Congress, in joint public session, for approval. Finally,
there is no delegation of legislative power since delegation of legislative power applies only
when there is transfer of power from one department of government to the other
departments. In this case, Congress did not delegate its power to the Executive or Judicial
department.
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In short, the petition poses two hinge issues: (1) whether it hoists a political question over
which the Court has no jurisdiction; and (2) assuming the issue raised is justiciable,
whether the Rules violate Article VII, Section 4 of the Constitution.
Let us keep a full eye on the Rules. The pertinent parts provide:
RULE VIII
JOINT COMMITTEE
SEC. 13. A Joint Committee shall be created composed of eleven (11) members
The Members of each House panel shall elect from among themselves their
banc or, in its discretion, in two divisions of eleven (11) members each
composed of a chairman, five (5) members from the Senate and five (5)
members from the House of Representatives: Provided, That a Member of
Congress who is a candidate for President or VicePresident shall not be eligible
for appointment to the Joint Committee. Each division shall be chaired by a
Chairman of the Joint Committee.
candidates for the offices of President and VicePresident.
The Representative of the province or city whose certificate of canvass is being
canvassed shall be an ex officio member of the Joint Committee, without voting
SEC. 14. The Joint Committee, en banc or in divisions, shall satisfy itself that
each certificate of canvass was duly executed, signed and thumb marked by the
Chairman and Members of the provincial, city or district Board of Canvassers
concerned; that it contains the names of all the candidates for President and
VicePresident and their corresponding votes in words and in figures; and there
exists no discrepancy in other authentic copies of the certificate of canvass or
discrepancy in the votes of any candidate in words and figures in the same
certificate.
SEC. 15. When the certificate of canvass, duly certified by the Board of
Canvassers of each province, city or district, appears to be incomplete, the
Senate President shall require the Board of Canvassers concerned to transmit by
personal delivery, the election returns from polling places that were not included
in the certificate of canvass and supporting documents. Said election returns
shall be submitted by personal delivery within two (2) days from receipt of
notice.
SEC. 16. In case of omission in the certificate of canvass of the name of any
candidate and/or the votes obtained by any candidate, the President of the
Senate shall summon, in the most expeditious manner, the provincial, city or
district Board of Canvassers concerned to supply the missing data in the
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certificate of canvass and to authenticate the same by affixing their signatures
thereon.
SEC. 17. When it appears that any certificate of canvass or supporting
statement of votes by precinct bears erasures or alterations which may cast
doubt as to the veracity of the number of votes stated therein and may affect
the result of the election, upon request of the Presidential or VicePresidential
candidate concerned or his party, Congress shall, for the sole purpose of
verifying the actual number of votes cast for President and VicePresident, count
the votes as they appear in the copies of the election returns submitted to it.
SEC. 18. In case the copy of the certificate of canvass for Congress is delayed,
the President of the Senate shall obtain said delayed certificate of canvass form
the provincial, city or district Board of Canvassers concerned within a period of
two days. In case the certificate of canvass has been lost, destroyed or is
otherwise unavailable, the Joint Committee shall immediately request the
Commission on Elections for its authentic copy of said certificate of canvass.
SEC. 19. The Joint Committee, whether en banc or in divisions, shall decide any
question involving the certificate of canvass by a majority vote of its Members,
approval by the joint session, the Senate and House of Representatives voting
separately. In case the two Houses disagree, the decision of the President of the
Senate, in consultation within the Speaker of the House of Representatives,
shall prevail.
SEC. 20. The Joint Committee en banc or in divisions, may, by a majority vote of
its Members each House panel voting separately, punish for contempt any
person who commits disorderly behavior during its session. Any member of the
provincial, city or district Board of Canvassers who refuses without reasonable
cause to obey any order issued by the President of the Senate as provided in
Sections 15, 16, 18 and 21 hereof, may likewise be punished for contempt by
the joint public session upon recommendation of the Senate President.
SEC. 21. The chairmen of the Joint Committee shall request from the
Commission on Elections technical assistance for purposes of the canvassing of
votes. A list of the names, specimen signatures and thumb marks of the
chairmen and members of the provincial, city and district Boards of Canvassers
shall be obtained from the Commission on Elections for the determination of the
authenticity and due execution of certificates of canvass. When there is any
doubt regarding the authenticity and due execution of the certificate of canvass,
the Joint Committee, en banc or any of its divisions, may require the personal
appearance of the chairmen and members of the provincial, city of district Board
of Canvassers concerned.
SEC. 22. The Joint Committee en banc shall tabulate the votes and, for this
purpose, may avail of the services of an independent accounting/auditing firm to
assist in the tabulation and canvass of votes.
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After the certificates of canvass and the statement of votes have been
tabulated, any Member of Congress may request in writing for copies thereof
from the Secretariat prior to the consideration of any interim or final report to
the joint session.
SEC. 23. The Joint Committee, en banc or in divisions, shall meet eight (8) hours
a day from Monday to Friday until all the certificates of canvass referred to it by
the joint public session shall have been canvassed. The final report shall be
submitted by the Joint Committee en banc to the joint public session for its
approval, each House voting separately.
RULE IX
REPORT OF THE JOINT COMMITTEE
SEC. 24. Notwithstanding the fact that not all certificates of canvass have been
received, the Joint Committee may submit to the joint public session its final
report with the recommendation to terminate the canvass if the total number of
registered voters corresponding to the province, city or district covered by the
certificates of canvass not yet transmitted would no longer affect the result of
the election. Congress in joint public session, voting separately, shall
immediately act on the final report.
The Joint Committee may, in its discretion, submit interim report to the joint
public session whenever there is a need for guidance or direction from Congress.
Provided, That objections raised and rulings made therein shall no longer be
included in the final report.
SEC. 25. At least a majority of the Members from each House panel shall sign
the final report of the Joint Committee. Every Member shall be provided with a
copy of the final report and shall be given twentyfour (24) hours within which to
submit his concurring or dissenting opinion.
SEC. 26. During the joint public session, the Member designated by the Joint
Committee shall speak for not more than one hour on the report and the
accompanying resolution approving "the report of the Joint Committee, declaring
the results of the canvass and proclaiming the Presidentelect and Vice
Presidentelect. The Member designated by those against the report shall also
speak for not more than one hour. Subsequent speakers for or against the
resolution shall be allowed to speak for not more than three hours; Provided,
That one (1) speaker for each candidate shall be given the opportunity to speak
for not more than twenty minutes.
RULE X
PROCLAMATION
SEC. 27. Upon termination of the canvass and approval of the Joint Committee
report and the accompanying resolution by majority of all the Members of both
Houses voting separately in the joint public session, Congress through the
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President of the Senate and the Speaker of the House of Representatives shall
forthwith proclaim the Presidentelect and VicePresidentelect.
I respectfully make the following submissions:
I
The petition poses a justiciable issue
over which this Court has jurisdiction.
The first issue is whether the petition involves a political question, hence, this Court is
bereft of jurisdiction to take cognizance of it. This is not the first time, and it will not be
last, when the Court will wrestle with the political question defense. As early as 1957, in
the landmark case of Tañada v. Cuenco,[2] this Court has held that political question
connotes what it means in ordinary parlance, a question of policy. It refers to "those
questions which under the Constitution, are to be decided by the people in their sovereign
capacity; or in regard to which full discretionary authority has been delegated to the
legislative or executive branch of government. It is concerned with issues dependent upon
the wisdom not legality of a particular measure." For this reason "x x x courts will not
normally interfere with the workings of another coequal branch unless the case shows a
clear need for the courts to step in to uphold the law and the Constitution."[3] We have a
continuous river of rulings that the political question doctrine cannot be invoked when the
issue is whether an executive act or a law violates the Constitution.[4] Thus, in Tatad v.
Secretary of the Department of Energy,[5] we emphatically explained that "the
principle of separation of powers mandates that challenges on the constitutionality of a law
should be resolved in our courts of justice while doubts on the wisdom of a law should be
debated in the halls of Congress."
When the Constitution is violated, even an act of a coequal and coordinate branch of
government has to be struck down. Our government operates both under the principle of
separation of powers and the principle of checks and balances. In less esoteric terms, this
means that our three branches of government, visàvis each other, follow the rule of
trust the two but trust no one absolutely. Thus, in Arroyo v. de Venecia,[6] this
Court, citing U.S. v. Ballin, Joseph & Co.,[7] and speaking thru Mr. Justice Vicente V.
Mendoza, held that "[t]he Constitution empowers each house to determine its proceedings.
It may not by its rules ignore constitutional restraints or violate fundamental rights, and
there should be a reasonable relation between the mode or method of proceeding
established by the rule and the result which is sought to be attained." In the recent case of
Francisco, Jr. v. The House of Representatives, et al.,[8] promulgated on November
10, 2003, it was also pointed out, viz:
To be sure, the force to impugn the jurisdiction of this Court becomes more
feeble in light of the new Constitution which expanded the definition of
judicial power as including "the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any part of any branch
or instrumentality of the Government." As well observed by retired Justice
Isagani Cruz, this expanded definition of judicial power considerably constricted
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the scope of political question. He opined that the language luminously suggests
that this duty (and power) is available even against the executive and
legislative departments including the President and the Congress, in the
exercise of their discretionary powers.
We shall not be breaking grounds in striking down an act of a coequal branch of
government or an act of an independent agency of government done in grave
abuse of discretion. Article VI, Section 17 of the 1987 Constitution provides,
inter alia, that the House of Representatives Electoral Tribunal (HRET) shall be
the "sole judge" of all contests relating to the election, returns, and
qualifications of the members of the House. In Bondoc v. Pineda, et al. this
Court declared null and void the Resolution of the House of Representatives
withdrawing the nomination, and rescinding the election of Congressman
Camasura as a member of the HRET. His expulsion from the HRET by the House
of Representatives was held not to be for a lawful and valid cause, but to
unjustly interfere with the tribunal's disposition of the Bondoc case and deprive
Bondoc of the fruits of the HRET's decision in his favor. This Court found that the
House of Representatives acted with grave abuse of discretion in removing
Congressman Camasura. Its action was adjudged to be violative of the
constitutional mandate which created the HRET to be the "sole judge" of the
election contest between Bondoc and Pineda. We held that a showing that
plenary power is granted either department of government is not an obstacle to
judicial inquiry, for the improvident exercise or the abuse thereof may give rise
to a justiciable controversy. Since "a constitutional grant of authority is not
unusually unrestricted, limitations being provided for as to what may be done
and how it is to be accomplished, necessarily then, it becomes the responsibility
of the courts to ascertain whether the two coordinate branches have adhered to
the mandate of the fundamental law. The question thus posed is judicial rather
than political."
We farther explained that the power and duty of courts to nullify, in appropriate
cases the actions of the executive and legislative branches does not mean that
the courts are superior to the President and the Legislature. It does mean
though that the judiciary may not shirk "the irksome task" of inquiring into the
constitutionality and legality of legislative or executive action when a justiciable
controversy is brought before the courts by someone who has been aggrieved or
prejudiced by such action. It is "a plain exercise of judicial power, the power
vested in courts to enable them to administer justice according to law. xxx It is
simply a necessary concomitant of the power to hear and dispose of a case or
controversy properly before the court, to the determination of which must be
brought the test and measure of the law."
In Angara v. Electoral Commission, we also ruled that the Electoral
Commission, a constitutional organ created for the specific purpose of
determining contests relating to election returns and qualifications of members
of the National Assembly may not be interfered with by the judiciary when and
while acting within the limits of authority, but this Court has jurisdiction over the
Electoral Commission for the purpose of determining the character, scope and
extent of the constitutional grant to the commission as sole judge of all contests
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relating to the election and qualifications of the members of the National
Assembly.
Similarly, in Arroyo v. House of Representatives Electoral Tribunal (HRET)
and Augusto Syjuco, we nullified the HRET's decision declaring private
respondent Syjuco as the duly elected Congressman of Makati for having been
rendered in persistent and deliberate violation of the Tribunal's own governing
rules and the rules of evidence.
To be sure, this Court has reviewed not just acts of the HRET but also of the
House of Representatives itself. We passed upon the issue of whether the
procedure for passing a law provided by the Constitution was followed by the
House of Representatives and the Senate in Tolentino v. Secretary of
Finance, et al. involving R.A. No. 7716 or the VAT law. We ruled that the VAT
law satisfied the constitutional provision requiring that all appropriation, revenue
and tariff bills originate from the House of Representatives under Article VI,
Section 24 of the 1987 Constitution. We also interpreted the constitutional
provision requiring the reading of a bill on three separate days "except when the
President certifies to the necessity of its immediate enactment, etc." and held
that this requirement was satisfied when the bill which became R.A. No. 7716
underwent three readings on the same day as the President certified the bill as
urgent. Finally, we interpreted the Rules of the Senate and the House of
Representatives and held that there was nothing irregular about the conference
committee including in its report an entirely new provision not found either in
the House bill or in the Senate bill as this was in accordance with the said
Rules.
The recent case of Macalintal v. COMELEC on absentee voting affirmed the
jurisdiction of this Court to review the acts of the legislature. In said case, the
Court settled the question of propriety of the petition which appeared to be
visited by the vice of prematurity as there were no ongoing proceedings in any
tribunal, board or before a government official exercising judicial, quasijudicial
or ministerial functions as required by Rule 65 of the Rules of Court. The Court
considered the importance of the constitutional issues raised by the petitioner,
and quoted Tañada v. Angara stating that "where an action of the legislative
branch is seriously alleged to have infringed the Constitution, it becomes not
only the right but in fact the duty of the judiciary to settle the dispute."
(citations omitted)
This line of thought enjoys the unanimous view of the Court. It is therefore futile to
contend that this Court has no jurisdiction over the petition at bar on the ground that it
poses a political question. The petition assails the creation by Congress of a Joint
Committee for the purpose of determining the authenticity and due execution of the
certificates of canvass appertaining to the positions of President and VicePresident in our
last May 10, 2004 elections. Petitioner contends that the creation violates Article VII,
Section 4 of the Constitution under which it is alleged that only Congress, in joint public
session, can exercise the said power. Petitioner also argues that the creation of the Joint
Committee deprives him of his constitutional right to participate in the canvass of the
results of the last Presidential and VicePresidential elections. The issue raised by
petitioner calls for the proper interpretation of Article VII, Section 4 of the
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Constitution visàvis the Rules of the Joint Public Session of Congress or Canvassing the
Votes Cast for the Presidential and VicePresidential Candidates in the May 10, 2004
Elections. Since time immemorial, the jurisdiction of this Court to interpret the Constitution
has never been successfully flayed. Indeed, this authority has been broadened by the
expanded definition of judicial power in the 1987 Constitution. In expanding the judicial
power of this Court, we said that "[t]o a great degree, the 1987 Constitution has narrowed
the reach of the political question doctrine when it expanded the power of judicial review of
this Court not only to settle actual controversies involving rights which are legally
demandable and enforceable but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government."[9] We even held that the Constitution "did not just grant
the Court the power of doing nothing."[10] Stubborn thoughts that still insist this Court has
no jurisdiction on issues that involve the interpretation of the Constitution should now be
consigned to the museum of memories.
II
Creation of Canvassing Committee constitutes
no grave abuse of discretion.
The next issue is whether the creation of a Joint Committee on Canvassing constitutes
grave abuse of discretion for being violative of Article VII, Section 4 of the Constitution
which relevantly states:
x x x
Unless otherwise provided by law, the regular election for President and Vice
President shall be held on the second Monday of May.
The returns of every election for President and VicePresident, duly certified by
the board of canvassers of each province or city, shall be transmitted to the
Congress, directed to the President of the Senate. Upon receipt of the
certificates of canvass, the President of the Senate shall, not later than thirty
days after the day of the election, open all the certificates in the presence of the
Senate and the House of Representatives in joint public session, and the
Congress, upon determination of the authenticity and due execution thereof in
the manner provided by law, canvass the votes.
The person having the highest number of votes shall be proclaimed elected, but
in case of two or more shall have an equal and highest number of votes, one of
them shall forthwith be chosen by the vote of a majority of all the Members of
the Congress.
The Congress shall promulgate its rules for the canvassing of the certificates.
x x x
Petitioner also contends that the Rules deprived him of his rights and prerogatives as a
member of Congress.
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The nature of the work of the Joint Committee deserves minute examination. The purpose
of the Joint Committee is spelled out in no uncertain terms in Rule VIII, Section 13, viz:
"The Joint Committee shall, upon determination of the authenticity and due execution of
the certificates of canvass, preliminarily canvass the votes of candidates for the offices
of the President and VicePresident." The key word is "preliminarily" which means its
work is preparatory,[11] a mere prelude. The preliminary work is performed by the Joint
Committee by satisfying itself — (1) that each certificate of canvass was duly executed,
signed and thumb marked by the Chairman and Members of the provincial, city or district
Board of Canvassers concerned; (2) that it contains the names of all the candidates for
President and VicePresident and their corresponding votes in words and figures; and (3)
that there exists no discrepancy in other authentic copies of the certificate of canvass or
discrepancy in the votes of any candidate in words and figures in the same certificate.[12]
Provisions were then crafted to deal with certain concrete problems. Rule VIII, Section
15, deals with the situation when the certificate of canvass, duly certified by the Board of
Canvassers of each province, city or district, appears to be incomplete. In this case, the
Senate President shall require the Board of Canvassers concerned to transmit by personal
delivery, the election returns from polling places that were not included in the certificate of
canvass and supporting documents. Rule VIII, Section 16, applies when there is an
omission in the certificate of canvass of the name of any candidate and/or the votes
obtained by any candidate. In this case, the President of the Senate is mandated by the
rule to summon, in the most expeditious manner, the provincial, city or district Board of
Canvassers concerned to supply the missing data in the certificate of canvass and to
authenticate the same by affixing their signatures thereon. Rule VIII, Section 17, is apt
when it appears that any certificate of canvass or supporting statement of votes by
precinct bears erasures or alterations which may cast doubt as to the veracity or
authenticity of the number of votes stated therein and may affect the result of the election.
Upon request of the Presidential or VicePresidential candidate concerned or his party, the
rule requires Congress itself, for the sole purpose of verifying the actual number of votes
cast for President and VicePresident, to count the votes as they appear in the copies of
the election returns submitted to it. Rule VIII, Section 18, deals with the situation when the
transmittal of the copy of the certificate of canvass is delayed. The rule directs the
Senate President to obtain said delayed certificate of canvass from the provincial, city or
district Board of canvassers concerned. The same Section 18 likewise addresses the
situation when the certificate of canvass has been lost, destroyed or is otherwise
unavailable. The rule requires the Joint Committee to immediately request the COMELEC
for its authentic copy of said certificate of canvass.
The Rules give the Joint Committee the necessary powers to discharge its duty. Rule
VIII, Section 20, grants it the power of contempt. It can punish for contempt any person
who commits disorderly behavior during its session. Rule VIII, Section 21, accords to it the
right to request from the COMELEC technical assistance for purposes of the canvassing of
votes. When there is any doubt regarding the authenticity and due execution of the
certificate of canvass, the Joint Committee, may require the personal appearance of the
chairmen and members of the provincial, city or district Board of Canvassers. Rule VIII,
Section 22, empowers the Committee to avail of the services of an independent
accounting/auditing firm to assist in the tabulation and canvass of votes.
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The Rules then provide for the Report to be submitted by the Joint Committee. Two kinds
of reports can be submitted by the Committee to the joint public session: One is the
interim report which the Committee, in its discretion, may submit whenever there is a
need for guidance or direction from Congress. Second is the final report containing
the objections raised on certain certificates of canvass and the rulings of the Committee.
Rule IX, Section 25, requires that every member of the Committee shall be provided a copy
of the final report and shall be given twentyfour (24) hours within which to submit his
concurring or dissenting opinion. At least a majority of the members from each House shall
sign the final report. The final report shall then be submitted to the joint public session for
its approval.
Rule IX, Section 26, then provides the manner on how the final report shall be debated by
the joint public session. Various speakers are allowed to speak for or against the
final report during the joint public session. First, the member designated by the Joint
Committee shall speak in favor of the final report for not more than one (1) hour. Second,
the member designated by those against shall be given the same time. Third,
subsequent speakers for or against the report shall be allowed to speak for not more
than three (3) hours. Fourth, one (1) speaker for each candidate shall be given the
opportunity to speak for not more than twenty (20) minutes. After the debates, the Joint
Committee report and the accompanying resolution have to be approved by majority of
all the members of both Houses voting separately in the joint public session. The
Presidentelect and the VicePresidentelect shall then be proclaimed through the
President of the Senate and the Speaker of the House of Representatives.
The Constitution, the Rules, as well as jurisprudence, inform us of the nature of the work
of Congress as the national canvassing board of the votes cast for the highest elective
positions in the land and how it should be discharged. They establish the following
indubitable postulates, viz:
First. When Congress convenes in joint public session as a national canvassing board, it is
not meeting as a lawmaking body. Its function as a canvassing board is not to make
laws but to count the votes cast by the electorate for the Presidency and the Vice
Presidency. As we succinctly held in Cordero v. Judge of First Instance of Rizal,[13]
while the Board of Canvassers is made up of legislators, it does not act in its capacity as a
maker of laws but as an entirely different and distinct entity organized for a specific
purpose. The Board of Canvassers exists for a specific function, that is, to canvass the
result of the election as shown in the election returns and to proclaim the winning
candidates.[14] The exercise of the power of canvassing of votes is more akin to the
discharge of an administrative power.
Second. As canvassers of votes for the positions of President and VicePresident, our
lawmakers are to discharge their duties with fairness and impartiality. Canvassing is an
important part of the process of determining the choice of our sovereign people on who
ought to be our President and VicePresident, the two highest elective posts in our country.
Thus, in making the canvass, our lawmakers should act more as representatives of
the people and less as partisans of political parties. For this reason, Article VII,
Section 4 of the 1987 Constitution did not give any significance to the political
affiliation of the lawmakers when they are discharging their duty as canvassers. In
cadence, Rule VIII, Section 13, bars a member of Congress who is a candidate for
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President or VicePresident from sitting in the Joint Committee. Stated otherwise,
lawmakers when canvassing votes, should keep their eyes open but should shut
them off to any political light. The members of city, provincial and district boards of
canvassers canvass the votes appertaining to our lesser elective officials yet they are
enjoined to be non partisan in the discharge of their duties. No less can be expected from
members of Congress acting as the national board of canvassers. In fine, when our
legislators acting as canvassers add 1 + 1, the sum should be 2, regardless of
their political affiliation.
Third. Congress can only proclaim as Presidentelect and VicePresidentelect they who,
on the basis of the election documents required by law, such as the certificates of canvass,
election returns and statements of votes, have established, at the very least, a prima
facie title to said offices. No candidate who has failed to establish a colorable legal title to
the positions of President and VicePresident can be proclaimed and be endowed with the
awesome mandate to govern our people. Democracy disdains the rule and reign of the
unelected.
Fourth. In canvassing the votes, our lawmakers are to determine the authenticity and due
execution of the certificates of canvass in the manner provided by law. Republic Act
No. 7166, Section 30, prescribes the manner by which certificates of canvass are
deemed authentic and duly executed. Read as a whole, Section 30 states that Congress
must examine each certificate of canvass not only on its face, but also visàvis the
statement of votes and election returns when necessary. This law is binding on Congress
acting as a canvassing body. Rightly, the relevant provisions of R.A. No. 7166 were
incorporated in the Rules.
As a canvassing body, Congress has no lawmaking power and hence cannot amend or
repeal R.A. No. 7166. It has therefore no discretion to disregard R.A. No. 7166. The Rules of
the Joint Public Session of Congress on Canvassing the Votes Cast for Presidential and
VicePresidential Candidates in the May 10, 2004 Elections have to be read, interpreted and
enforced in consonance with R.A. No. 7166.
Fifth. The determination of the authenticity and due execution of the certificates of
canvass cannot be done in a robotic manner. R.A. No. 7166 and the Rules look upon our
lawmakers not as unthinking slot machines when conducting the canvass. For this reason,
the law and the rules require that due consideration be given not only to the certificates
of canvass but also to the election returns and the statement of votes. In other words,
the search for the truth about the true will of the electorate should not be
confined to the four corners of the certificates of canvass. The truth, if blocked by the
opaque face of the certificates of canvass, must be extracted from the election returns and
statements of votes. It is selfevident that discovering and distilling the truth of who were
really elected by our people for the positions of President and VicePresident deserve more
than a mechanical effort.
Sixth. The determination of the authenticity and due execution of the certificates of
canvass calls for the exercise of discretion. It is selfevident that reconciling
discrepancies in the certificates of canvass visàvis, among others, the election returns
and statements of votes involves intelligent judgment. It is for this reason that in the
discharge of its functions, the Joint Committee was clothed with certain powers. It can
request technical assistance from the COMELEC. It can require the personal appearance of
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the chairmen and members of the provincial, city or district Board of Canvassers. It can
avail of the services of an independent accounting or auditing firm. It has the awesome
power to punish for contempt any person who commits disorderly behavior during its
session. More importantly, the Rules require that our lawmakers decide the authenticity
and due execution of the certificates of canvass only after a full debate by members of
Congress. In fine, determining the authenticity and due execution of certificates of canvass
cannot be done by adding machines.
Seventh. The primary consideration in determining the authenticity and due execution

of the certificates of canvass is accuracy accuracy in determining the sovereign will of
the people. The need to fast track the determination of the will of the people pales in
comparison with this consideration. It is a travesty of democracy for the people to be
governed by people without a mandate. The nation can endure a slow but trustworthy
tally. It may not survive an indefensible count, however speedy it may be.
Eight. The determination of the authenticity and due execution of the certificates of
canvass is governed by a distinct process to insure that when it reaches its end, the ones
who will be proclaimed Presidentelect and VicePresidentelect can, at the very least,
have a colorable claim to said offices. This colorable claim can only be established
after full debate on the authenticity and due execution of the certificates of canvass in
light of other election documents such as election returns and statements of votes and
the testimonies of the chairmen and members of the provincial, city, or district board of
canvassers, in appropriate cases. The debate contemplated is one that will elicit the truth
as to the choice of the people, hence, the Rules provide the following, viz: (a) each
candidate is allowed two (2) watchers who shall have access to an unimpeded view of the
entire proceedings; (b) each candidate is likewise allowed lawyers who may argue and
question any certificate of canvass; (c) upon the opening of the certificates of canvass,
observations and objections of any member of Congress with reference to the condition of
their envelope, seal and serial number shall already be entered into the records and shall
be considered during the proceedings of the Joint Committee; (d) the Joint
Committee is composed of eleven (11) members from the Senate to be appointed by the
President of the Senate and eleven (11) members from House of Representatives to be
appointed by the Speaker. To insulate it from partisan politics, a member of Congress who
is a candidate for President or VicePresident is barred from appointment to the Joint
Committee; (e) the Representative of the province or city whose certificate of canvass is
being canvassed is made exofficio member of the Joint Committee, without voting rights,
for the duration of the canvassing of the aforesaid certificate of canvass; (f) remedies are
provided for in cases where a certificate of canvass is incomplete or with omissions or
where it is lost destroyed or otherwise unavailable; (g) the Joint Committee is given the
authority to avail of the technical assistance of the COMELEC and of the services of an
independent accounting or auditing firm for the proper discharge of its task; (h) after the
Certificate of Canvass and statement of votes have been tabulated by the Committee, any
member of Congress may request in writing for copies thereof from the secretariat prior to
the consideration of any interim or final report to the joint public session; (i) the interim
and final report shall contain the objections raised and the rulings thereon by the Joint
Committee; (j) every member of the Joint Committee is given twentyfour (24) hours from
receipt of the final report within which to submit his concurring or dissenting opinion; (k)
the final report is then forwarded to the joint public session for debate. A member of the
Joint Committee is given one (1) hour to speak in favor of the final report; another
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member of the Committee is given also one (1) hour to speak against the report; other
speakers for or against the report are further allowed to speak for not more than three (3)
hours; and one (1) speaker for each candidate is given the opportunity to speak for not
more than twenty (20) minutes; (l) after full debate, the final report is submitted to a vote
by the joint public session, each House voting separately. In case the two Houses
disagree, the decision of the President of the Senate, in consultation with the Speaker of
the House of Representatives, will prevail.
The process may be long and laborious but it has a purpose. It is designed to give our
lawmakers all the facts and all the arguments necessary for an informed and intelligent
judgment in determining the authenticity and due execution of the certificates of canvass.
It demands that the evidence, the arguments of the parties, and the applicable law should
be meticulously weighed by the lawmakers before they pass judgment on whether to
canvass the votes in the certificates of canvass. The objections to their authenticity and
due execution should be given their appropriate consideration. An unreasoned or
unreasonable judgment by Congress runs the risk of rejection in the parliament of
the street of the people. And the danger is that we may not just face a mute
multitude.
Ninth. The laws and the rules give clear rights to the candidates. Candidates to the
position of the President and VicePresident cannot be denied due process. Thus, they are
allowed watchers. They are entitled to lawyers who can question any certificate of canvass
before the Joint Committee. When the final report is up for voting by the joint public
session of Congress, they can have speakers to defend their interest. Candidates are also
entitled to the equal protection of the law. They cannot be subjected to discriminatory
treatment. All these and their other constitutional rights are not suspended during
the canvass.
Tenth. The law and the rules likewise impose duties on Congress as a canvassing board.
Congress must be an outpost of openness. The canvassing must be transparent.
Lawmakers must conduct the canvassing without a taint of arbitrariness. The worse
type of arbitrariness is arbitrariness that runs roughshod over the sovereign will of the
people
Prescinding from these predicates, I find no difficulty in voting to dismiss the
petition at bar. The Rules of the Joint Public Session of Congress on Canvassing the Votes
Cast For Presidential and VicePresidential Candidates in the May 10, 2004 Elections do not
violate Article VII, Section 4 of the 1987 Constitution. To begin with, the Constitution
grants Congress the power to promulgate its own rules for the canvassing of election
certificates. The Rules enjoy the presumption of legality and the petitioner has
miserably failed to overcome this presumption.
The argument that the creation of the Joint Committee constitutes an undue delegation
of legislative power is an egregious error. As a canvassing board, Congress
exercises no legislative power and therefore did not delegate any.
In creating the Joint Committee, Congress did not abdicate its constitutional duty to
determine the authenticity and due execution of the certificates of President and Vice
President in the May 10, 2004 election. Even a sideglance at the powers and prerogatives
of the Joint Committee will subvert petitioner's submission. The function of the Joint
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Committee is laid down in Rule VIII, Section 14. To stress again, it shall satisfy itself that
(1) each certificate of canvass was duly executed, signed and thumb marked by the
Chairman and members of the provincial, city or district board of canvassers concerned;
(2) it contains the names of all the candidates for President and VicePresident and their
corresponding votes in words and figures; and (3) there exists no discrepancy in other
authentic copies of the certificate of canvass or discrepancy in the votes of any candidate
in word and figures in the same certificate. In the performance of this function, the Joint
Committee has to prepare a Report which will contain the objections raised by the parties
on the admission of the certificates of canvas concerned and its rulings thereon. Rule VIII,
Section 13, emphasizes that the canvass of the Joint Committee is a mere preliminary
canvass. The rulings of the Joint Committee reflected in its Report are merely
recommendatory in nature. Its Report is yet to be submitted to the joint public session
of Congress for approval, each House voting separately. The constitutional canvassing
duty of Congress is therefore preserved and remains undiminished.
Nor is the right of petitioner as lawmaker canvasser unduly prejudiced by the creation
of the Joint Committee. The proceedings of the Joint Committee are open and transparent.
Under Rule VIII, Section 22, after the certificates of canvass and the statement of votes
have been tabulated by the Joint Committee, petitioner, like any other member of
Congress, may request in writing for their copies prior to the consideration of any report by
the Committee to the joint public session. Under Rule IX, Section 26, petitioner may speak
for or against the final report of the Joint Committee whose findings and rulings are non
binding to the joint public session of Congress. His right to vote for or against the
final report of the Joint Committee therefore stands undiluted. In truth, the creation
of a Joint Committee to preliminarily canvass the results of the Presidential and Vice
Presidential election is compelled by the need to hasten the canvass considering that our
laws have set a deadline for proclamation. History is studded with insights. The practice of
creating a Joint Committee was resorted to by Congress in the 1961, 1965, 1992 and 1998
elections. Its effectiveness has been proven.
IN VIEW OF THE FOREGOING, I vote to dismiss the petition.

[1] A delegated power cannot be delegated.
[2] 103 Phil. 1051(1957).
[3] Integrated Bar of the Philippines v. Zamora, 338 SCRA 80 (2000).
[4] Gonzales v. COMELEC, 129 Phil. 7 (1967).
[5] 281 SCRA 330, 348 (1997).
[6] 277 SCRA 268 (1997).
[7] 144 U.S. 5, 36 L ed., 324325.
[8] G.R. No. 160261. See Concurring and Dissenting Opinion, J. Puno.
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[9] Ibid.
[10] Estrada v. Desierto, G.R. Nos. 14671015, March 2, 2001.
[11] The New Webster's Dictionary of the English Language, 1995 International Edition, p.
790.
[12] Section 14.
[13] 40 Phil. 246, 251 (1919).
[14] Aquino v. COMELEC, 22 SCRA 288, 293 (1968).

[ G.R. No. 163556. June 8, 2004 ]
CONGRESSMAN RUY ELIAS C. LOPEZ, PETITIONER, VERSUS SENATE OF THE
PHILIPPINES (REPRESENTED HEREIN BY THE HON. FRANKLIN DRILON, PRESIDENT
OF THE SENATE), HOUSE OF REPRESENTATIVES (REPRESENTED HEREIN BY THE
HON. JOSE DE VENECIA, SPEAKER OF THE HOUSE OF REPRESENTATIVES), JOINT
COMMITTEE OF CONGRESS TO CANVASS THE VOTES CAST FOR PRESIDENTIAL AND
VICEPRESIDENTIAL CANDIDATES IN THE MAY 10, 2004 NATIONAL ELECTIONS,
THE CHIEF FINANCIAL OFFICER AND CHIEF BUDGET OFFICER OF THE SENATE, AND
THE CHIEF FINANCIAL OFFICER AND CHIEF BUDGET OFFICER OF THE HOUSE OF
REPRESENTATIVES, RESPONDENTS.

SEPARATE OPINION
QUISUMBING, J.:
In this petition before us for prohibition and mandamus under Rule 65 of the Rules of Court,
petitioner invokes the extraordinary jurisdiction and duty of the Supreme Court pursuant to
the Constitution, Article VIII, Section 1, par. 2, "to determine whether or not there has
been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government."
Yet, basing on his arguments, we can say that the pith of petitioner's plea goes deeper
than the averment of personal exclusion from the select panel tasked as "a joint
committee of Congress to Canvass the votes cast for Presidential and VicePresidential
candidates in the May 10, 2004 national elections." He assails the Rules [*] that Congress
passed on May 28, 2004 because, in his view, the Rules "effectively amends and
abrogates" certain provisions of the Constitution, particularly Section 4, Article VII, which
give Congress the power and authority to promulgate rules for said committee as the
Board of National Canvassers. Further, he charges the Congress of unlawful neglect in the
performance of duty enjoined by the Constitution because, by its passage of said Rules,
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Congress as a whole delegated unlawfully its tasks as canvasser at the highest level to a
mere joint committee of eleven Senators and eleven Congressmen.[*]
Noteworthy, he raises expressly before us only one issue:
"Whether or not the Rules of the Joint Public Session of Congress on Canvassing
the Votes Cast for Presidential and VicePresidential Candidates in the May 10,
2004 Elections are Valid, Legal, and Constitutional."
He marshals his arguments abovecited to advance the thesis that said Rules are invalid,
illegal, and unconstitutional. But by prefacing his plea to us on the principle of the tripartite
separation of powers of government and the principle of potestas delegata non potest
delegari, he also triggers implicitly a second issue: whether the court possesses
jurisdiction over the subject matter he brings.
In the Resolution dated 4 June 2004, we denied petitioner's prayer for issuance of a
temporary restraining order. Without giving due course to the petition, we required
respondents herein and the Solicitor General to comment. On June 7, 2004, before
noontime, we received the Comment of respondent Senate of the Philippines, the
Comment/Opposition by respondent House of Representatives, and the Comment by the
Office of the Solicitor General.[*] After a thorough dissection of the issue raised by
petitioner, we find that the respondents rightly prayed for dismissal of the petition outright,
"for lack of constitutional and legal basis"[**] and "for lack of merit”[***]
In denying the issuance of a temporary restraining order, we were not unmindful of the
prevailing air of anxiety and popular perception that the canvass of votes for the two
highest positions of government is overdue. Announcement of the election results cannot
be delayed for weeks by mere technicalities. At the same time, a majority of nine members
of the Court were of the considered opinion that the views of the opposition parties need to
be fairly and fully ventilated in a neutral forum that could render the appropriate relief.
Despite prevailing doubts on the possible preemption of the functions reserved by the
Constitution, Article VII, Sec. 4, to the Presidential Electoral Tribunal, we could not let the
petitioner go away empty handed simply because he failed to attach his affidavit of service
to the petition. Majority of the Court members believe it is in the public interest that
comments on the petition be required from herein respondents as well as the people's
tribune, the Solicitor General. Thereafter, the Court could promptly rule on the merits of the
petition, provided the members are satisfied that the vital requirements of constitutional
litigation, including the existence of a case and controversy, lis mota, ripeness, locus
standi and justiciability, are clearly met.
As a member of the House of Representatives, believing that he was prejudiced gravely by
that chamber's action, petitioner has in his favor the requisite personality (locus standi) to
bring this suit before us. This we need not belabor. But it still behooves us to determine, at
the very inception of our discourse, whether the issue raised by petitioner is one that is
justiciable rather than a political question. By itself, the threshold requirement of
justiciability, which is to say the appropriateness of a subject matter for judicial
consideration, is trumped by the assertion of the political question doctrine, perhaps
rendering certain government conduct immune from judicial review.[*]
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In Tañada v. Cuenco, (103 Phil. 1051) the Court defined political questions as those "which,
under the Constitution are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government (Id. at p. 1065).[**] This formulation evolving from the
separation of powers doctrine has been sharpened by saying that challenges on the
constitutionality of a law should be resolved by the Court while doubts on the wisdom of
law should be debated in the halls of Congress. (Tatad v. Secretary, 281 SCRA 347). More
recently, Francisco, Jr. v. HR, (G.R. No. 160261, decided Nov. 10, 2003), gave us the
opportunity for further distinction. Per Madame Justice CarpioMorales, "the determination
of a truly political question from a nonjusticiable political question lies in the answer to the
question of whether there are constitutionally imposed limits on powers or functions
conferred upon political bodies. If there are, then our courts are dutybound to examine
whether the branch or instrumentality of the government properly acted within such
limits." To that extent, we consider Nixon v. United States, 506 U.S. 224, cited by the OSG,
inappropriate. Instead we find instructive the ruling in U.S. v. Baffin, Joseph & Co., 144 U.S.
1, which held that while each House of Congress is empowered by the Constitution to
determine its rules of proceedings, it may not by its rules ignore constitutional restraints or
violate fundamental rights.
Procedurally, it must be stressed that the petitioner in an action for mandamus has the
burden to show a clear, certain, and welldefined right to the relief sought. (Sales v.
Mathay, G.R. No. L39537, 31 May 1984, 129 SCRA 180, 183.) Mandamus cannot compel
the performance of a discretionary duty. Further, an action for prohibition, as a rule, lies
only against judicial or ministerial functions, but not legislative functions. (Ruperto v.
Torres, G.R. No. L8785, 25 Feb. 1957.)
Be that as it may, considering the crucial importance of the matter at hand, not just for the
moment but also for the future of a nation beset by crises after crises, it is our view that a
prompt consideration of the instant petition is called for. As well said in Bondoc v. Pineda,
201 SCRA 792, "a showing that plenary power is granted [to another branch of the
government] is not an obstacle to judicial inquiry, for the improvident exercise or the
abuse thereof may give rise to a justiciable controversy.”
Nevertheless, with due respect to a coequal branch, interference with the adoption and
implementation of internal rules of Congress is furthest from our mind. Indubitably, per the
Constitution, Art. VII, Sec. 4, it is Congress and not any other organ of the State which
shall promulgate the rules for the canvassing of the certificates of votes for the President
and the VicePresident. Indeed we recognize the plenary power of Congress to enact its
own internal rules on the matter. (Osmeña v. Pendatum, 109 Phil. 863. See also Arroyo v.
De Venecia, 277 SCRA 268). What prompts us today to look into the present petition is the
duty to say what the law is, as a matter of constitutional prerogative by way of judicial
review.[*] To abdicate that duty is to invite lawlessness and disorder.
If only for edification, let us now focus on petitioner's complaint.
He alleges that "the questioned Rules of Congress call for the creation of a Joint Committee
under Section 13, Rule VIII thereof, which provides that the Joint Committee shall: (a) be
composed of eleven (11) members from the Senate to be appointed by the Senate
President and eleven (11) members from the House of Representatives to be appointed by
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the Speaker; (b) sit en banc or, in its discretion, in two (2) divisions of eleven members
each; (c) determine the authenticity and due execution of the certificates of (/to canvass;
and (d) preliminarily canvass the votes of candidates for the offices of President and Vice
President."[*]
Petitioner concludes that the Rules thus "(a) removed from the Congress as one whole
body and transferred to the Joint Committee of Congress the duty and function of
determining the authenticity and due execution of the certificates of canvass, and (b)
removed from the Congress as one whole body and transferred to the Joint Committee of
Congress the duty and function of canvassing the votes cast for presidential and vice
presidential candidates."[*]
"Such removal and transfer of canvassing tasks from the constitutionally mandated entity
to the Joint Committee is directly contrary to the Constitution itself," according to
petitioner. "There is absolutely nothing in the Constitution which allows expressly or by
inference such removal and transfer of canvassing tasks from Congress as one whole body
to another entity," he adds. "Neither is there anything in the constitution which allows any
substitution of the Congress as one whole body in the performance of the constitutionally
mandated canvassing tasks. Section 4, Article VII of the Constitution cannot be any clearer
on the matter."
With the alleged delegation and transfer to a Joint Committee of the task of canvassing the
votes cast for Presidential and VicePresidential candidates, he contends, "the canvassing
of the votes will be done by and only before the Joint Committee. . . composed of only 11
members from the Senate and 11 members of the House of Representatives. Petitioner and
all other members of both Houses of Congress who are not members of the Joint
Committee of Congress have thus been unduly deprived of their rights and prerogatives as
incumbent members of Congress to be present at, observe and participate in the
canvassing of votes..."[*]
Respondent House of Representatives, thru its Speaker Jose de Venecia, traverses
petitioner's allegations. Joint Committees, according to De Venecia, are constituted
primarily to facilitate the work of the two houses of Congress. The use of the joint
committee system, he adds, is a well recognized and established practice. Such was the
mode, he says, in canvassing the Presidential and VicePresidential votes during elections
held on 1957, 1961, 1965, 1969, 1992, and 1998.[**] Even assuming that the principle of
delegata potestas non potest delegari applies, nevertheless he submits that such
delegation by the Congress is a valid delegation of powers beyond cavil, for Congress
retains its control over the canvassing process, and the ultimate decision on the matter is
lodged in Congress itself. On this score, we are in agreement. Equally important, we also
agree with the Speaker that when acting as the National Board of Canvassers, Congress is
not engaged in legislation, hence no issue of undue delegation of legislative power need
arise.
In any event, we are assured by respondent Senate, through its President Franklin M.
Drilon, that contrary to the assertion of the petitioner, he is not deprived of any right or
prerogative by the Joint Committee under its Rules that he now assails. Petitioner's
participation in the canvassing remains guaranteed under the Rules of the Joint Public
Session, thus:
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"SEC. 19. The Joint Committee, whether en banc or in divisions, shall decide any
approval by the joint session, the Senate and House of Representatives
voting separately. In case the two Houses disagree, the decision of the
President of the Senate, in consultation with the Speaker of the House of
Representatives, shall prevail.
. . .
SEC. 23. The Joint Committee, en banc or divisions, shall meet eight (8) hours a
day from Monday to Friday until all the certificates of canvass referred to it by
submitted by the Joint Committee en banc to the joint public session for
its approval, each House voting separately.
. . .
certificates of canvass not yet transmitted would no longer affect the results of
the election. Congress in joint public ession, voting separately, shall
. . .
SEC. 27. Upon termination of the canvass and approval of the Joint
Committee report and the accompanying resolution by majority of all the
Members of both Houses voting separately in the joint public session,
Congress through the President of the Senate and the Speaker of the
House of Representatives shall forthwith proclaim the Presidentelect
and VicePresident elect."
By its very nature, either chamber of Congress must act through committees. They make
the business of legislation feasible and practicable. Without working committees, the tasks
of the Senate or the House would be unmanageable. The same is true of both chambers
acting as the National Board of Canvassers. To deprive the Board of the committee system
is tantamount to obstructing its work and consigning it to delay and failure.
Whether the Joint Committee or Congress as a whole is clothe with ministerial or
discretionary powers in the canvass of votes, including the "determination of the
authenticity and due execution" relative to the canvass of certificates need not, in my
view, preoccupy us now. Nor should the question of fraud and other matters more
appropriate for an election protest, if any. What is important now is that the canvass be
conducted "in the manner provided by law."[*]
The OSG calls attention, however, to one factor in this controversy: "the avoidance of
undue delay in the canvass of certificates to ensure the proclamation of the winning
candidates before June 30, 2004 Constitutional deadline"[**] Respondent House thru its
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Speaker bewails "an obvious attempt to stop or delay the current canvassing of votes for
both the Presidency and the VicePresidency,” whereby petitioner, in effect "would cast a
cloud of doubt on the elections for the two highest posts of land," including most if not all
previous elections. To respondent, such doubt would have staggering implications.[***]
As the Solicitor General keenly observed:
"In the judgment of the Congress, to require the whole Congress to canvass the
certificates would unduly delay the canvassing of votes. This delay may prove
detrimental to the national interest. Far from undermining the Constitution, the
creation of the joint canvassing committee will ensure that the elected President
and VicePresident shall assume office at noon of June 30, 2004, in accordance
with the Constitution. The national interest would be best served by deferring to
this policy decision made by the Congress. "[*]
WHEREFORE, finding no clear and adequate basis to declare that there is a grave abuse of
discretion on the part of the respondents, I vote that the instant petition be DISMISSED
for lack of merit.
[*] Annex "A" to the petition.
[*] Arguments, p. 10 of petition.
[*] A member of the Joint Committee, Hon. Ma. Blanca Kim BernardoLokin, also filed a
motion for leave to file attached Comment, which we granted and noted on 8 June 2004.
[**] Comment, House of Representatives, p. 12.
[***] Comment, Senate of the Philippines, p. 40.
[*] See Baker v. Carr, 369 U.S. 186.
[**]See also Estrada v. Desierto, 353 SCRA 452.
[*] SeeMarbury v. Madison, 5 U.S. 137 (1803), and Gore v. Bush, 531 U.S. 98 (2000).
[*] Petition, p. 13.
[*] Petition, p. 22.
[**] Citing Congressional Records for these years.
[*] See Records, Constitutional Com., pp. 391, 401.
[**] Comment of the OSG, p. 15.
[***] Comment, House of Representatives, p. 10.
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[*] Comment of the OSG, p. 15.

[ G.R. No. 163556. June 8, 2004 ]

CONGRESSMAN RUY ELIAS C. LOPEZ, PETITIONER, VERSUS SENATE OF THE
PHILIPPINES (REPRESENTED HEREIN BY THE HON. FRANKLIN DRILON, PRESIDENT
OF THE SENATE), HOUSE OF REPRESENTATIVES (REPRESENTED HEREIN BY THE
HON. JOSE DE VENECIA, SPEAKER OF THE HOUSE OF REPRESENTATIVES), JOINT
COMMITTEE OF CONGRESS TO CANVASS THE VOTES CAST FOR PRESIDENTIAL AND
VICEPRESIDENTIAL CANDIDATES IN THE MAY 10, 2004 NATIONAL ELECTIONS,
THE CHIEF FINANCIAL OFFICER AND CHIEF BUDGET OFFICER OF THE SENATE, AND
THE CHIEF FINANCIAL OFFICER AND CHIEF BUDGET OFFICER OF THE HOUSE OF
REPRESENTATIVES, RESPONDENTS.

SEPARATE CONCURRING OPINION
CARPIO MORALES, J.:
I join in the Resolution dismissing the instant petition, and in addition, I would like to make
the following observations.
By his Petition for Prohibition and Mandamus (Petition), petitioner Ruy Elias C. Lopez,
incumbent Representative of the 3rd Legislative District of Davao City, seeks:

(1) a judgment declaring null and void the Rules of the Joint Public Session of
Congress on Canvassing the Votes Cast for the Presidential and Vice
Presidential Candidates in the May 10, 2004 Elections (Rules on
Canvassing) adopted by both Houses of Congress on May 28, 2004;
(2) the issuance of a writ of prohibition directing all of respondents to cease
and desist from implementing the Rules on Canvassing; and
(3) the issuance of a writ of mandamus directing both Houses of Congress "to
immediately open the certificates of canvass in the presence of the Senate
and House of Representatives in joint public session, and the Congress to
determine the authenticity and due execution thereof in the manner
provided by law and canvass the votes as expressly commanded under
Section 4 (paragraph 4), Article VII of the Constitution x x x."[1]

Petitioner advances the following arguments in support of his Petition:
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A R G U M E N T S
The Aforementioned Rules of Congress Dated May 28, 2004 Constitute an
Unconstitutional Delegation of Legislative Power to a Joint Committee of
Congress.
Unconstitutional Amendment of Section 4, Article VII of the Constitution.
Unconstitutional Deprivation and Derogation of the Rights and Prerogatives of
Petitioners [sic] as Members [sic] of Congress.
By the Passage of the Aforementioned Rules Dated May 28, 2004, Congress has
Unlawfully Neglected the Performance of an Act which the Constitution
Specifically Enjoins as a Duty Resulting from Office.[2]
In fine, the Petition raises two issues for resolution. First, whether the Rules on Canvassing
constitute an unconstitutional delegation of a nonministerial power vested exclusively by
the Constitution in the Congress as a whole. Second, whether the Rules on Canvassing
deprives petitioner of his alleged rights and prerogatives to be present, observe and
participate in the determination of the authenticity and due execution of the Certificates of
Canvass for President and VicePresident.
As always, in exercising its power of judicial review,[3] this Court does not assert any
superiority over a coequal branch of the government, but merely acts pursuant to its
mandated duty to determine whether an organ of government has acted within the
restrictions and limitations imposed by the Constitution.[4] Where an act of Congress is
shown to have outstripped the boundaries set by the Constitution, this Court has not
hesitated to declare the same null and void.[5] But, at the same time, where constitutional
infirmity has not been proven, this Court is duty bound to uphold and respect the actions of
the Legislature.[6]
Matters of procedure and jurisdiction aside, for the reasons discussed hereunder, I find that
the issues raised in the Petition must be decided in the negative.
The national canvass of votes for President and VicePresident by Congress is provided for
in Section 4, Article VII of the Constitution, as follows:
Section 4. The President and the VicePresident shall be elected by direct vote
of the people for a term of six years which shall begin at noon on the thirtieth
day of June next following the day of the election and shall end at noon of the
same date six years thereafter. The President shall not be eligible for any
reelection. No person who has succeeded as President and has served as such
for more than four years shall be qualified for election to the same office at any
time.
No VicePresident shall serve for more than two successive terms. Voluntary
renunciation of the office for any length of time shall not be considered as an
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interruption in the continuity of the service for the full term for which he was
elected.
Unless otherwise provided by law, the regular elections for President and Vice
President shall be held on the second Monday of May.
The returns of every election for President and VicePresident, duly
certified by the board of canvassers of each province or city, shall be
transmitted to the Congress, directed to the President of the Senate.
Upon receipt of the certificates of canvass, the President of the Senate
shall, not later than thirty days after the day of the election, open all the
certificates in the presence of the Senate and the House of
Representatives in joint public session, and the Congress, upon
determination of the authenticity and due execution thereof in the
manner provided by law, canvass the votes.
The person having the highest number of votes shall be proclaimed
elected, but in case two or more shall have an equal and highest number
of votes, one of them shall forthwith be chosen by the vote of a majority
of all the Members of both Houses of the Congress, voting separately.
The Congress shall promulgate its rules for the canvassing of the
certificates.
The Supreme Court, sitting en banc, shall be the sole judge of all contests
relating to the election, returns, and qualifications of the President or Vice
President, and may promulgate its rules for the purpose. (Emphasis supplied)
Petitioner maintains that the foregoing solely and exclusively vested three tasks on
Congress, in its capacity as the National Board of Canvassers, to wit:

a) the President of the Senate shall open all the certificates of canvass in the
presence of the Senate and House of Representatives in joint public
session,
b) Congress shall determine the authenticity and due execution of all
certificates of canvass in the manner provided by law, and
c) Congress shall canvass the votes for presidential and vice presidential
candidates.[7]
Petitioner then argues that the following portions of the Rules on Canvassing:
Sec. 13. A Joint Committee shall be created composed of eleven (11) members
The Members of each House panel shall elect among themselves their
banc or, in its discretion, in two (2) divisions of eleven members each composed
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of a chairman, five (5) members from the Senate and five (5) from the House of
Representatives: Provided, That a Member of Congress who is a candidate for
President or VicePresident shall not be eligible for appointment to the Joint
Committee. Each division shall be chaired by a Chairman of the Committee.
The Representative of the province or city whose certificate of canvass is being
canvassed shall be an exofficio member of the Joint Committee, without voting
Sec. 14. The Joint Committee, en banc or in divisions, shall satisfy itself that
each certificate of canvass was duly executed, signed and thumbmarked by the
discrepancy in the votes of any candidate in words and figures in the same
certificate. x x x
Sec. 19. The Joint Committee, whether en banc or in divisions, shall decide any
question involving the Certificate of canvass by a majority vote of its Members,
each House panel voting separately. x x x (Rule VIII).[8] (Emphasis and
underscoring supplied)
removed from Congress and transferred to the Joint Committee the functions of (a)
determining the authenticity and due execution of the certificates of canvass and (b)
canvassing the votes for President and VicePresident, in contravention of the Constitution.
This argument fails.
First, contrary to petitioner's assertions, the functions of determining the authenticity and
due execution of the certificates of canvass and the actual canvassing of votes are both
ministerial functions. Thus, in Lopez v. Roxas,[9] this Court, noting that the function of
Congress as the National Board of Canvassers was essentially just like that of any
municipal, city or provincial board of canvassers, held:
Needless to say, the power of Congress to declare who, among the
candidates for President and/or VicePresident, has obtained the largest
number of votes, is entirely different in nature from and not inconsistent
with the jurisdiction vested in the Presidential Electoral Tribunal by
Republic Act No. 1793. Congress merely acts as a national board of
canvassers, charged with the ministerial and executive duty to make
said declaration, on the basis of the election returns duly certified by
provincial and city boards of canvassers. Upon the other hand, the
Presidential Electoral Tribunal has the judicial power to determine whether or
not said duly certified election returns have been irregularly made or tampered
with, or reflect the true result of the elections in the areas covered by each,
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and, if not, to recount the ballots cast, and incidentally thereto, pass upon the
validity of each ballot or determine whether the same shall be counted, and, in
the affirmative, in whose favor, which Congress has power to do[10] (Emphasis
and underscoring supplied; italics in the original)
Petitioner, however, contends that the foregoing no longer holds since, unlike the 1935 or
1973 Constitutions, the 1987 Constitution vested Congress, as the National Board of
Canvassers, with "more than merely ministerial functions." In particular, petitioner
contends that the determination of the authenticity and due execution of the certificates of
canvass necessarily "requires the exercise of sound discretion based upon informed
judgement through the use of the faculty of the intellect."[11]
Petitioner is mistaken.
A ministerial duty is one which is clear and specific leaving no room for the exercise of
discretion in its performance. Upon the other hand, a discretionary duty is that which by
its nature requires the exercise of judgment.[12]
In general, the duty of a board of canvassers has been held to be purely ministerial in
function, its task being limited to mathematically computing the results of the elections on
the basis of the documents submitted to it. Thus, in Demafiles v. Commission on Elections,
[13] this Court held:
First, a canvassing board performs a purely ministerial function — that of
compiling and adding the results as they appear in the returns
transmitted to it. This is the teaching in Nacionalista Party v.
Commission on Elections: "the canvassers are to be satisfied of the
genuineness of the returns — namely, that the papers presented to them
are not forged and spurious, that they are returns, and that they are
signed by the proper officers. When so satisfied, . . . they may not reject
any returns because of informalities in them or because of illegal and
fraudulent practices in the elections." Thus, they cannot pass upon the
validity of an election return, much less exclude it from the canvass on the
ground that the votes cast in the precinct from whence it came are illegal.
But the exclusion of the return in this case is sought to be justified on the
ground that it is "obviously manufactured" because, contrary to the statement
therein that there were 195 registered voters, of whom 188 voted, the
certificate of the local election registrar states that only 182 voters had
registered on October 30, 1967. Lagumbay v. Commission on Elections is cited in
support of this view. In Lagumbay the returns were palpably false as it
was indeed statistically improbable that "all the eight candidates of one
party garnered all the votes, each of them receiving exactly the same
number, whereas all the eight candidates of the other party got
precisely nothing." In other words, the aid of evidence aliunde was not
needed, as "the fraud [being] so palpable from the return itself (res ipsa
loquitur — the thing speaks for itself), there is no reason to accept it and
give it prima facie value."
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On the other hand, the return in this case shows nothing on its face from
which the canvassers might conclude that it does not speak the truth. It
is only when it is compared with the certificate of the election registrar that a
discrepancy appears as to the number of registered voters. The return
therefore is by no means "obviously manufactured" so as to justify its
exclusion.
This is not to belittle the respondent's claim that more people than registered
voters were allowed to vote in precinct 7. Perhaps that is true, although the
petitioner claims that after October 30, 1967 eight more voters were allowed to
register (making a total of 190 voters), and on the day of the election 5 voters
erroneously assigned to precinct 6 were allowed to vote in precinct 7 because
that was where they were really assigned. The point is simply that this
question should be threshed out in an election contest.[14] (Emphasis and
The foregoing decisions also clearly illustrate that the duty of a board of canvassers to
authenticate the documents submitted to it, before tabulating the results is not
something new. Indeed, authentication is necessarily included in the task of canvassing
since only genuine documents which are in due form may be canvassed. This, however,
does not imply that a board of canvassers also exercises adjudicatory powers to assume
jurisdiction over allegations of electoral fraud or irregularity. Such allegations may only be
threshed out through an election contest before the proper adjudicatory body. Thus, in
Dizon v. Tizon,[15] this Court held:
We are of the opinion that the dismissal of the petition below is
correct, and that the remedy now sought against such dismissal
should be denied.
1. The election return for precinct No. 18 of Dinalupihan is not
"obviously manufactured" within the meaning of our decision in
Lagumbay vs. Commission on Elections, G.R. No. L25444, January
21, 1966. The said return, as found by the lower court, is regular and
complete on its face. In fact, when it was canvassed by the provincial
board of canvassers on December 7, 1967, the petitioner did not raise
any objection to it or point to any defect or infirmity in its contents.
The discrepancy on which the petition was based is not one
which appears on the face of the return, but between the
statement therein that 279 ballots had been cast and an
entirely different document, namely the certification of the
election registrar that only 80 voters actually voted. This
certification, as correctly explained by the trial court, was not
material insofar as the board of canvassers was concerned,
since its ministerial duty was to read and canvass the results
of the election on the basis of the returns, once satisfied that
the same were genuine.
x x x
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If there was any fraud or irregularity committed in the election in said
precinct; if, for example, some ballots were filled and cast by persons
other than the registered voters themselves, the election return could
not, for that reason, be considered as obviously manufactured. It
would still reflect the actual number of ballots found and counted, and
the remedy to correct the anomaly would be an election contest, not
a petition to exclude the return in question from the canvass and thus
virtually annul the election in that precinct.[16] (Emphasis and
And in Abella v. Commission on Elections,[17] this Court stated:
x x x The issue is the refusal of the COMELEC to consider objections to 24
election returns on which the board of canvassers had not made a
written ruling. But it would seem that, strictly speaking, no ruling was
necessary, or even proper. By the petitioners' own contention "in all those 24
returns, the Christian name, nickname or maternal surname of private
respondent's husband was used with her Christian name or nickname which, as
we will show at length infra, did not constitute a valid vote for private
respondent. If so, the total 1,912 votes in these returns credited for private
respondent should be discounted." This matter was obviously beyond the
competence of the board of canvassers to resolve. Neither was it
cognizable in a preproclamation controversy before the COMELEC as defined in
Section 243 of the Omnibus Election Code.
This provision reads as follows:
Sec. 243. Issues that may be raised in preproclamation controversy. — The
following shall be proper issues that may be raised in a preproclamation
controversy:
(a) Illegal composition or proceedings of the board of canvassers;
(b) The canvassed election returns are incomplete, contain material defects,
appear to be tampered with or falsified, or contain discrepancies in the same
returns or in other authentic copies thereof as mentioned in Sections 233, 234,
235 and 236 of this Code;
(c) The election returns were prepared under duress, threats, coercion, or
intimidation, or they are obviously manufactured or not authentic; and
(d) When substitute or fraudulent returns in controverted polling places were
canvassed, the results of which materially affected the standing of the
aggrieved candidate or candidates.
The inclusion or exclusion in the canvass of certain election returns
where votes allegedly cast for Emeterio Larrazabal were counted for his
wife is an issue appropriate in an election contest and not in a pre
proclamation controversy. And it is also immaterial that, as also contended,
the inclusion of such votes would affect the overall results of the election and
swing it in his favor. The accepted rule is that as long as the returns appear
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to be authentic and duly accomplished, the board of canvassers cannot
look beyond them to verify allegations of irregularities in the casting or
the counting of the votes. These issues cannot be resolved by the board of
canvassers. A long line of decisions has established the doctrine that the
board of canvassers has only the ministerial task of tallying the votes
as reported in the election returns and cannot exercise the judicial
power of deciding an election contest.[18] (Emphasis and underscoring
supplied)
It does not appear from the text of Section 4, Article VII of the Constitution that the phrase
"upon determination of authenticity and due execution [of the certificates of canvass] in
the manner provided by law" was intended to confer anything more than a ministerial duty
on Congress and the National Board of Canvassers. In fact, when this very point was raised
during the deliberations of the Constitutional Commission, Commissioner Maambong, the
author of the amendment expressly clarified that the duty of the National Board of
Canvassers was ministerial in nature, to wit:
MR. NOLLEDO. I am referring to the use of the words "upon determination
of the authenticity and the execution thereof" on lines 7 and 8, page 2,
referring to the certificates of canvass of the President and Vice (page
391) President. Am I right if I say that because of the use of these
words, the duty of the legislature to canvass is no longer ministerial?
MR. MAAMBONG. Madam President, the word "ministerial" has always

been interpreted by the Supreme Court as applicable to the canvass
made by the national Assembly, and the reason why we did not put the
word "ministerial" in the Article is, it has been understood in the case of
Roxas v. Lopez and in other cases. When we used the words "authenticity"
and "genuineness," the question refers to the problem of whether or not the
ministerial function is already nonministerial. The answer is, it is still
ministerial, but when we say "authenticity and due execution," what it
really means is that the national Assembly will look at the certificates of
canvass and find out from the face of the document whether there are
flaws in the execution and authenticity of the document. That is what it
means.
there are serious defects in the certificates of canvass as when the seals are
therefore, authenticity appears to be questionable what will happen?
MR. MAAMBONG. The answer to that is the phrase "in the manner provided by
law." The Committee had to insert the phrase "in the manner provided by
law" so that the legislature itself will find out and will make it very
specific as to what flaws or deficiencies in the certificates of canvass can
be taken cognizance of by the canvassing board of tellers, because as of
now the guiding regulations that govern the National Assembly, as I mentioned
in the Committee, are: the rules and regulations of the COMELEC, the Omnibus
Election Code, the jurisprudence from the decisions of the Supreme Court. All
these things taken together, the legislature is given a notice by using the
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phrase "in the manner provided by law," so that it will make a
determination now of what are the points which the board of tellers can
take cognizance of, because it is not very clear right now under the laws and
regulations, and as a matter of fact, that was one of the controversies which
arose during the canvassing of the votes of President Aquino and former
President Marcos in the last Batasan.[19] (Emphasis and underscoring supplied)
Indeed a contrary interpretation is not possible because the last paragraph of the very
same constitutional provision vests the power to adjudicate electoral controversies
concerning the positions of President and VicePresident exclusivelys with the Supreme
Court, viz:
x x x
The Supreme Court, sitting en banc, shall be the sole judge of all contests
relating to the election, returns, and qualifications of the President or Vice
President, and may promulgate its rules for the purpose
An examination of Section 30 of Republic Act 7166, the implementing law referred to in the
abovecited constitutional provision, removes all doubt as to the ministerial character of
the duties and functions of the Congress as the National Board of Canvassers:
Sec. 30. Congress as the National Board of Canvassers for the Election of
President and VicePresident: Determination of Authenticity and Due Execution
of Certificates of Canvass. Congress shall determine the authenticity and
due execution of the certificate of canvass for President and Vice
President as accomplished and transmitted to it by the local boards of
canvassers, on a showing that: (1) each certificate of canvass was
executed, signed and thumbmarked by the chairman and members of the
board of canvassers and transmitted or caused to be transmitted to
Congress by them; (2) each certificate of canvass contains the names of
all of the candidates for President and VicePresident and their
corresponding votes in words and in figures; and (3) there exists no
discrepancy in other authentic copies of the certificate of canvass or
discrepancy in the votes of any candidate in words and figures in the
certificate.
When the certificate of canvass, duly certified by the board of canvassers of
each province, city or district, appears to be incomplete, the Senate President
shall require the board of canvassers concerned to transmit by personal
delivery, the election returns from polling places that were not included in the
certificate of canvass and supporting statements. Said election returns shall be
submitted by personal delivery within two (2) days from receipt of notice.
When it appears that any certificate of canvass or supporting statement of votes
by precinct bears erasures or alterations which may cast doubt as to the
veracity of the number of votes stated therein and may affect the result of the
election, upon request of the Presidential or VicePresidential candidate
concerned or his party, Congress shall, for the sole purpose of verifying the
actual number of votes cast for President and VicePresident, count the votes as
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they appear in the copies of the election returns submitted to it. (Emphasis
supplied)
The foregoing clearly limits the authentication of the certificates of canvass to (1) a
physical examination of the certificates themselves to determine whether: (a) each
certificate was executed, signed and thumbmarked by the chairman and members of the
board of canvassers and transmitted to Congress by them, (b) each certificate of canvass
contains the names of all of the candidates for President and VicePresident and their
corresponding votes in words and in figures, and (c) there is a discrepancy between the
words and figures in the votes of any of the candidates; and (2) a physical comparison to
determine any discrepancies between the certificates transmitted to the Congress and the
other authentic copies of the certificate of canvass.
These tasks are purely mechanical and therefore clearly ministerial in nature and do not
require "the exercise of sound discretion based upon informed judgment through the use of
the faculty of the intellect."
Second, a reading of the questioned Rules on Canvassing shows that there has been no
delegation by Congress of its duties as the National Board of Canvassers to an entity
separate and distinct from Congress itself. To delegate means to transfer authority from
one person to another; to empower one to perform a task in behalf of another; [20] to
transfer authority by one branch of government in which such authority is vested to some
other branch or administrative agency.[21]
By promulgating the questioned Rules on Canvassing, all Congress has done is refer to the
Joint Committee the mechanical and ministerial tasks of (1) physically examining the
certificates of canvass for irregularities or discrepancies, as provided for in Section 30 of
Republic Act 7166, and (2) tabulating the votes of the respective candidates:
SEC. 14. The Joint Committee, en banc or in divisions, shall satisfy itself that
each certificate of canvass was duly executed, signed and thumb marked by the
discrepancy in the votes or any candidate in words and figures in the same
certificate.
x x x
tabulated, any Member of Congress may request in writing for copies thereof
from the Secretariat prior to the consideration of any interim or final report to
the joint session.
However, the same Rules on Canvassing clearly provides that Congress, as a whole,
retains control over the canvassing process. Thus, any determination made by the
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Joint Committee as well as the preliminary canvass itself is subject to the final approval
of both House of Congress, voting separately, thus:
approval by the joint session, the Senate and the House of
Representatives voting separately. In case the two Houses disagree, the
decision of the President of the Senate, in consultation with the Speaker of the
House of Representatives, shall prevail.
x x x
public session whenever there is a need for guidance or direction from
Congress: Provided, That objections raised and rulings made thereon shall no
longer be included in the final report.
the final report of the Joint Committee. Every Member shall be provided with a
copy of the final report and shall be given twentyfour (24) hours within which to
submit his concurring or dissenting opinion.
accompanying resolution approving the report of the Joint Committee, declaring
Presidentelect. The Member designated by those against the report shall also
speak for not more than one hour. Subsequent speakers for or against the
resolution shall be allowed to speak for not more than three hours: Provided,
That one (1) speaker for each candidate shall be given the opportunity to speak
for not more than twenty minutes.
RULE X
PROCLAMATION
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and the VicePresidentelect. (Emphasis supplied)
The foregoing provisions also make it abundantly clear that it is Congress, as a whole and
meeting in joint session, and not the Joint Committee, which has the ultimate authority to
proclaim the winning candidates for President and VicePresident.
Petitioner nonetheless insists that even such a referral by Congress to its own Joint
Committee is proscribed since the Constitution allegedly requires that the functions of the
National Board of Canvassers should be performed by all the members of both Houses of
Congress acting together. Thus, so he argues, there is nothing in the Constitution which
allows Congress to refer the physical inspection and comparison of the certificates of
canvass and the mechanical tabulation of the votes cast for each candidate to the Joint
Committee.[22]
Petitioner's argument stands a basic principle of Constitutional law on its head. It is
axiomatic that the presumption is in favor of constitutionality.[23] To strike down a law or
rule as unconstitutional, there must be a clear and unequivocal showing that what the
fundamental law prohibits, the law or rule permits.[24]
While there is nothing to prevent Congress from undertaking the authentication and
canvassing of the certificates through a committee of the whole, if it so chooses, there is
also nothing in the text of Section 4, Article VII of the Constitution that prohibits Congress
from referring the authentication and tabulation of the certificates of canvass to a
bicameral committee. Indeed, the only task expressly required by the Constitution to be
done in the presence of the all the Senators and Representatives is the opening by the
Senate President of all the certificates of canvass at the start of the joint session of
Congress.
Petitioner's attempt to draw parallels between the canvassing procedure provided for in
Section 4, Article VII of the Constitution and the impeachment procedures provided for in
Sections 1 to 3 of Article XI[25] does not persuade. A reading of the provisions of Article XI
readily demonstrates the detailed manner by which the Constitution sets forth the
procedures for impeachment, even to the extent of specifying the number of session days
between each phase of the impeachment process. In contrast, aside from specifying the
manner by which the certificates of canvass are transmitted to Congress, the date for the
opening of the certificates by the Senate President, and that the person with the highest
number of votes shall be proclaimed elected,[26] Section 4 of Article VII gives wide latitude
to Congress to determine the manner by which to undertake the canvass of votes.
To be sure, there is nothing irregular or sinister in the referral by Congress of the
authentication and tabulation functions to the Joint Committee. As a matter of convenience
and expediency, both Houses of Congress regularly refer matters to their respective
Committees for study and recommendation. In Tolentino v. Secretary of Finance[27], where
the validity of amendments introduced by a bicameral conference committee of both
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Houses of Congress in a tax bill was put into question, this Court, speaking through Justice
Vicente V. Mendoza, held:
Nor is there any doubt about the power of a conference committee to insert new
provisions as long as these are germane to the subject of the conference. As
this Court held in Philippine Judges Association v. Prado, 227 SCRA 703 (1993),
in an opinion written by then Justice Cruz, the jurisdiction of the conference
committee is not limited to resolving differences between the Senate and the
House. It may propose an entirely new provision. What is important is that
its report is subsequently approved by the respective houses of
Congress. This Court ruled that it would not entertain allegations that, because
new provisions had been added by the conference committee, there was
thereby a violation of the constitutional injunction that "upon the last reading of
a bill, no amendment thereto shall be allowed."
Applying these principles, we shall decline to look into the petitioners'
charges that an amendment was made upon the last reading of the
bill that eventually became R.A; No. 7354 and that copies thereof in
its final form were not distributed among the members of each
House. Both the enrolled bill and the legislative journals certify that
the measure was duly enacted i.e., in accordance with Article VI, Sec.
26(2) of the Constitution. We are bound by such official assurances
from a coordinate department of the government, to which we owe,
at the very least, a becoming courtesy. (Id., at 710. [Emphasis
added])
It is interesting to note the following description of conference committees in
the Philippines in a 1979 study:
Conference committees may be of two types: free or instructed.
These committees may be given instructions by their parent bodies
or they may be left without instructions. Normally the conference
committees are without instructions, and this is why they are often
critically referred to as "the little legislatures." Once bills have been
sent to them, the conferees have almost unlimited authority to
change the clauses of the bills and in fact sometimes introduce new
measures that were not in the original legislation. No minutes are
kept, and members' activities on conference committees are difficult
to determine. One congressman known for his idealism put it this
way: "I killed a bill on export incentives for my interest group [copra]
in the conference committee but I could not have done so anywhere
else." The conference committee submits a report to both houses,
and usually it is accepted. If the report is not accepted, then the
committee is discharged and new members are appointed. (R.
Jackson, Committees in the Philippine Congress, in COMMITTEES AND
LEGISLATURES: A COMPARATIVE ANALYSIS 163 (J. D. LEES AND M.
SHAW, eds.))
In citing this study, we pass no judgment on the methods of
conference committees. We cite it only to say that conference
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committees here are no different from their counterparts in the
United States whose vast powers we noted in Philippine Judges
Association v. Prado, supra. At all events, under Art. VI, §16(3) each
house has the power "to determine the rules of its proceedings,"
including those of its committees. Any meaningful change in the
method and procedures of Congress or its committees must therefore
be sought in that body itself.[28]
If parts of the legislative process, which are unquestionably both sovereign and
discretionary in character, may be referred to a bicameral committee in the interest of
efficiency and expediency, there is no reason why the ministerial tasks of authentication
and tabulation of certificates of canvass cannot similarly be referred to the Joint
Committee created by the Rules on Canvassing.
As a second line of argument, petitioner claims that the Rules on Canvassing unduly
deprives him of his rights and prerogatives to be present at, observe and participate in the
determination of the authenticity and due execution of all certificates of canvass.[29]
Petitioner's claim is without constitutional basis. The rights he asserts are not to be found
within the four corners of the Constitution. In fact the only individual member of Congress
on whom the Constitution imposes specific duties with regard to the canvass is the Senate
President, who is responsible for the reception and opening of the certificates of canvass.
More importantly, and contrary to petitioner's assertions, the Rules on Canvassing
adequately provides each member of Congress with an opportunity to observe the
canvassing and to make known his views on the Report of Joint Committee:
Sec. 13. A Joint Committee shall be created composed of eleven (11) members
The Members of each House panel shall elect among themselves their
banc or, in its discretion, in two (2) divisions of eleven members each composed
of a chairman, five (5) members from the Senate and five (5) from the House of
Representatives: Provided, That a Member of Congress who is a candidate for
President or VicePresident shall not be eligible for appointment to the Joint
Committee. Each division shall be chaired by a Chairman of the Committee.
The Representative of the province or city whose certificate of canvass is
being canvassed shall be an exofficio member of the Joint Committee,
without voting rights, for the duration of the canvassing of the aforesaid
certificate of canvass.
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approval by the joint session, the Senate and the House of
Representatives voting separately. In case the two Houses disagree, the
decision of the President of the Senate, in consultation with the Speaker of the
House of Representatives, shall prevail.
x x x
tabulated, any Member of Congress may request in writing for copies
thereof from the Secretariat prior to the consideration of any interim or
final report to the joint session.
public session whenever there is a need for guidance or direction from
Congress: Provided, That objections raised and rulings made thereon shall no
longer be included in the final report.
the final report of the Joint Committee. Every Member shall be provided with
a copy of the final report and shall be given twentyfour (24) hours
within which to submit his concurring or dissenting opinion.
accompanying resolution approving the report of the Joint Committee, declaring
Presidentelect. The Member designated by those against the report shall
also speak for not more than one hour. Subsequent speakers for or
against the resolution shall be allowed to speak for not more than three
hours: Provided, That one (1) speaker for each candidate shall be given
the opportunity to speak for not more than twenty minutes.
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RULE X
PROCLAMATION
and the VicePresidentelect. (Emphasis supplied)
The Rules on Canvassing likewise provides for mechanisms by which the candidates,
through their representatives, may participate in the canvassing process:
Section 8. Each candidate shall be entitled to two watchers from a team
of five watchers who shall have access to an unimpeded view of the
entire canvassing proceedings. They shall register their attendance before
the Joint Committee and shall keep vigilant watch over the ballot boxes from
the time the same are received in the House of Representatives until the
canvassing proceedings are terminated.
Each candidate shall likewise be entitled to attorneys who shall serve
during the entire canvassing proceedings. The attorneys shall register their
appearances before the Joint Committee: Provided, That only one attorney for
every candidate may argue and question any certificate of canvass
considered by the Joint Committee for not more than five (5) minutes which
may be extended for a similar period by the chairman when the need arises
without prejudice to the right to submit a written memorandum not later
than twentyfour (24) hours from the time the objection was raised. No
extension of the period to submit shall be allowed, and if no memorandum is
submitted with the said period, the right shall be considered waived. (Emphasis
and underscoring supplied)
as well as remedies in case patent irregularities and discrepancies are discovered in the
certificates of canvass:
Section 17. When it appears that any certificate of canvass or supporting
statement of votes by precinct bears erasures or alterations which may
cast doubt as to the veracity of the number of votes stated therein and
may affect the result of the election, upon request of the Presidential or
VicePresidential candidate concerned or his party, Congress shall, for
the sole purpose of verifying the actual number of votes cast for President and
VicePresident, count the votes as they appear in the copies of the
election returns submitted to it. (Emphasis and underscoring supplied).
The procedure adopted by Congress is not without rational basis. The procedure embodied
in the questioned Rules on Canvassing is evidently intended to accomplish both a speedy
and accurate canvass. On the other hand, while there appears to be little to be gained in
the way of accuracy if the authentication and canvass of the certificates were undertaken
by both Houses of Congress as a whole, much time may be lost by such a procedure.
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It may not be amiss to point out that the timeliness of the canvassing and the
proclamation of the Presidentelect and VicePresidentelect is also of concern. It is a
general policy of our elections laws that controversies arising before the proclamation of
winning candidates should be dealt with in a summary manner so that the canvass and
proclamation be delayed as little as possible. Hence, questions involving the appreciation
of votes and the conduct of the election campaign and the voting itself, which require more
deliberate and necessarily longer consideration, are properly the subject matter of election
protests before the appropriate adjudicatory body.[30] In the recent case of Sandoval v.
Commission on Elections,[31] this Court had occasion to state:
On the first issue, we uphold the jurisdiction of the COMELEC over the petitions
filed by private respondent. As a general rule, candidates and registered political
parties involved in an election are allowed to file preproclamation cases before
the COMELEC. Preproclamation cases refer to any question pertaining to or
affecting the proceedings of the board of canvassers which may be raised by
any candidate or by any registered political party or coalition of political parties
before the board or directly with the Commission, or any matter raised under
Sections 233, 234, 235 and 236 in relation to the preparation, transmission,
receipt, custody and appreciation of election returns. The COMELEC has
exclusive jurisdiction over all preproclamation controversies. As an exception,
however, to the general rule, Section 15 of Republic Act (RA) 7166
prohibits candidates in the presidential, vicepresidential, senatorial and
congressional elections from filing preproclamation cases. It states:
"SECTION 15. Preproclamation Cases Not Allowed in Elections for

President, VicePresident, Senator, and Members of the House of
Representatives. — For purposes of the elections for President, Vice
President, Senator and Member of the House of Representatives, no
preproclamation cases shall be allowed on matters relating to the
preparation, transmission, receipt, custody and appreciation of
election returns or the certificates of canvass, as the case may be.
However, this does not preclude the authority of the appropriate
canvassing body motu propio or upon written complaint of an
interested person to correct manifest errors in the certificate of
canvass or election returns before it."
The prohibition aims to avoid delay in the proclamation of the winner in
the election, which delay might result in a vacuum in these sensitive
posts. x x x [32] (Emphasis supplied)
Verily, the will of the people is no less frustrated by undue delays in the canvass and
proclamation of the winning candidates as by other forms of electoral fraud.
Finally, it may be observed that, because there can only be one winner, elections naturally
provoke intense competition among the candidates vying for elective office. And in a close
race for the highest executive position, fierce partisan political activity is but to be
expected. But once the electoral process has moved beyond election day itself and all that
is left to be done is to ascertain the will of the people as expressed through the ballot, it is
to be hoped that the members of both Houses of Congress, politicians though they may be,
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will remember the words of Manuel Luis Quezon, first President of the Commonwealth of
the Philippines, and realize that loyalty to their party ends where loyalty to their country
begins.
WHEREFORE, I vote to DISMISS the Petition.
[1] Petition at 23.
[2] Id. at 10.
[3] CONST. art. VIII, sec. 1.
[4] Angara v. Electoral Commission, 63 Phil 139, 156159 (1936).
[5] Vide: In re Prautch, 1 Phil 132 (1902); U.S. v. Ang Tang Ho, 43 Phil 1 (1922); Bondoc v.
Pineda, 201 SCRA 792 (1991).
[6] Vide: Arroyo v. De Venecia, 277 SCRA 268 (1997), Santiago v. Guingona, Jr., 298 SCRA
756 (1998).
[7] Petition, at 18.
[8] Id. at 79.
[9] 17 SCRA 756 (1966).
[10] Id. at 169.
[11] Petition at 1516.
[12] Mateo v. Court of Appeals, 196 SCRA 280, 284 (1991) citing Symaco v. Aquino, 106 Phil
1130(1960).
[13] 21 SCRA 1462, 1466 (1967).
[14] Id. at 14661467.
[15] 22 SCRA 1317 (1968).
[16] Id. at 13181320.
[17] 180 SCRA 509 (1989).
[18] Id. at 514515.
[19] II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES 390
391 (1986).
[20] Black's Law Dictionary, 6th ed. at 426.
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[21] Ibid.
[23] Salas v. Jarencio, 46 SCRA 734 (1970); Morfe v. Mutuc, 22 SCRA 424 (1968); Peralta
v. Commission on Elections, 82 SCRA 30 (1978).
[24] David v. Commission on Elections, 271 SCRA 90 (1997) ; vide: Arroyo v. De Venecia,
supra; Santiago v. Guingona, Jr., supra.
[25]
ARTICLE XI
ACCOUNTABILITY OF PUBLIC OFFICERS

SECTION 1. Public office is a public trust. Public officers and employees must
at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with patriotism and justice,
and lead modest lives.
SECTION 2. The President, the VicePresident, the Members of the Supreme
Court, the Members of the Constitutional Commissions, and the Ombudsman
may be removed from office, on impeachment for, and conviction of, culpable
violation of the Constitution, treason, bribery, graft and corruption, other high
crimes, or betrayal of public trust. All other public officers and employees may
be removed from office as provided by law, but not by impeachment.
SECTION 3. (1) The House of Representatives shall have the exclusive power
to initiate all cases of impeachment.
(2) A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement
by any Member thereof, which shall be included in the Order of Business within
ten session days, and referred to the proper Committee within three session
days thereafter. The Committee, after hearing, and by a majority vote of all its
Members, shall submit its report to the House within sixty session days from
such referral, together with the corresponding resolution. The resolution shall
be calendared for consideration by the House within ten session days from
receipt thereof.
(3) A vote of at least onethird of all the Members of the House shall be
necessary either to affirm a favorable resolution with the Articles of
Impeachment of the Committee, or override its contrary resolution. The vote
of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at
least onethird of all the Members of the House, the same shall constitute the
Articles of Impeachment, and trial by the Senate shall forthwith proceed.
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(5) No impeachment proceedings shall be initiated against the same official
more than once within a period of one year.
(6) The Senate shall have the sole power to try and decide all cases of
impeachment. When sitting for that purpose, the Senators shall be on oath or
affirmation. When the President of the Philippines is on trial, the Chief Justice
of the Supreme Court shall preside, but shall not vote. No person shall be
convicted without the concurrence of twothirds of all the Members of the
Senate.
(7) Judgment in cases of impeachment shall not extend further than removal
from office and disqualification to hold any office under the Republic of the
Philippines, but the party convicted shall nevertheless be liable and subject to
prosecution, trial, and punishment according to law.
(8) The Congress shall promulgate its rules on impeachment to effectively
carry out the purpose of this section.
[26] Unless two or more shall have an equal and highest number of votes. In which case,
one of them shall be chosen by the vote of a majority of all the Members of both Houses of
Congress, voting separately.
[27] 249 SCRA 628 (1995).
[28] Id. at 649650.
[30] Abella v. Larrazabal, supra.
[31] 323 SCRA 403 (2000).
[32] Id. at 417418.
[ G.R. No. 163556. June 8, 2004 ]
CONGRESSMAN RUY ELIAS C LOPEZ V. SENATE OF THE PHILIPPINES,
OF CONGRESS TO CANVASS THE VOTES CAST FOR PRESIDENTIAL CANDIDATES IN
THE MAY 10, 2004 NATIONAL ELECTIONS, THE CHIEF FINANCIAL OFFICER AND
CHIEF BUDGET OFFICER OF THE SENATE, AND THE CHIEF FINANCIAL OFFICER AND
CHIEF BUDGET OFFICER OF THE HOUSE OF REPRESENTATIVES
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SEPARATE OPINION
TlNGA, J.:
The tradition of judicial review is as old as the essences of the democratic system of
government we practice today.[1] This Court has consistently affirmed the doctrine, dating
as far back as the Commonwealth era.[2] Judicial review arises from the inherent judicial
power, and has traditionally relied on no statutory grant other than the source law that
created the judicial system.[3]
At the same time, the notion of separation of powers is a linchpin of our constitutional
order. Coordinate political departments are accorded their respective spheres over which
they exercise discretion to manage. It is a rule that promotes efficient governance, and,
perhaps more importantly, institutionalizes the system of checks and balances within the
government.
These two doctrines are hardly antithetical. Judicial review ensures that the other branches
of government obey the Constitution.[4] It also shields one branch from undue interference
by another. On the other hand, the Court should restrain itself from unduly interfering in
the affairs of coequal branches of government. Indeed, the unwarranted exercise of the
judicial power would be judicial activism at its most egregious.
Cognizant that unwarranted judicial review may breach both the traditional deference
accorded by the judiciary to the coordinate political departments and the presumption of
validity accorded to their actions, jurisprudence has fostered the evolution of the "political
question" doctrine as a form of autolimitation of the judicial power. The traditional stance
of the Court has been to desist from deciding issues that may properly be classified as
political questions. A political question refers to a question of policy or to issues which,
under the Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government.[5]
In our country, the "political question" doctrine has undergone some rethinking, particularly
in light of the misuse of the doctrine during the martial law era. The incorporation of Article
VIII, Section I[6] in the 1987 Constitution has especially affected this Court's thinking on
the political question doctrine.[7]
Yet while nobody pretends that Section 1, Article VIII invented judicial review in the
Philippines, I likewise submit that the same article did not render the "political question"
inconsequential. Section 1, Article VIII has crystallized into a constitutional command
decades of jurisprudence affirming this Court's exercise of judicial review, as balanced by
the political question doctrine. Neither have the contours of judicial review been altered by
the new provision. Its effect is simply this: with judicial duty cast not only as a power but
also as a duty, no longer can this Court refuse to correct a coordinate branch's act of grave
abuse of discretion simply on the premise that it constitutes a political question, as it had
done in the past.[8]
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The petition is unable to show any grave abuse of discretion on the part of the Congress in
promulgating the canvassing rules. Shorn of this essential element, the Court is left with
nothing to review but an act of a coordinate branch of government which is textually
committed to Congress by Article VII, Section 4 of the Constitution.[9] This is a political
question, and the Court should not extend due course to the petition.
This leads to an important point which the Court should not overlook. The mere incantation
by a petitioner of "grave abuse of discretion" is not a passport to this Court's jurisdiction. If
upon initial review, it appears that no grave abuse of discretion attends the questioned
political act, the Court should say so, and say nothing more.
Moreover, an express rejection of jurisdiction over political questions bereft of grave abuse
of discretion serves not only as an act of courtesy to the coequal branch, but also as an
act of deference to the Constitution. While the Court should not hesitate to compel an
errant branch into obeying the Constitution, it should also acknowledge when the other
branches are obeying the Constitution, and that the Court itself is observing its own
constitutional mandate by refusing to interfere.
The present petition serves as a perfect opportunity to desist and reject.
The basic issue proposed by petitioner is whether the rules of canvass ("Rules")
promulgated relative to the 10 May 2004 elections are constitutional.[10] In support of his
thesis that the Rules are unconstitutional, petitioner makes four arguments; that the Rules
are an unconstitutional delegation of legislative power to a joint committee of Congress;
that the Rules amend Section 4, Article VII of the Constitution; that the Rules deprive
petitioner of his rights and prerogatives as a member of congress; and by enforcement of
the Rules, Congress neglects performing its constitutionally enjoined duty.[11]
On the arguments raised by the petitioner, the result is clearcut. The petition is palpably
without merit.
First, the Rules does not constitute an unconstitutional delegation of legislative power. The
power to canvass votes is not inherently legislative, as it does not pertain to the
enactment of legislation.[12] By traditional concept, the nondelegation rule means that
Congress may not constitutionally delegate its legislative power to another branch of
government.[13]
At the same time, pursuing this point is ultimately needless, as despite petitioner's claim,
there really is no delegation made by Congress. A clear examination of the Rules reveals
that therein, Congress retains the right to open the certificates of canvass and canvass the
votes.
Second, the Rules does not amend Article VII, Section 4 of the Constitution by providing for
an unconstitutional method for canvassing the votes.
Congress is expressly granted the power to promulgate rules for the canvassing of the
certificates.[14] By virtue of this express right, the Rules were promulgated by Congress.
The Joint Committee does not have any authority or power except that granted to it under
the questioned Rules. Even then, its power is limited only to functioning as a preparatory or
preliminary body to speed up and make more efficient the canvassing of the votes.[15] The
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Joint Committee's acts and determinations do not have any force and effect unless
approved by the whole of Congress.[16]
The canvassing of the votes under the questioned Rules is still the act of Congress as one
whole body. The findings of the Joint Committee do not bind Congress unless approved in a
joint public session.[17] Accordingly, Congress may choose to overrule the findings and
determinations made by the Joint Committee.
The assailed Rules, and the procedure laid therein, are but an offshoot of legislative
practice.[18] Congress, as a matter of legislative practice, functions by way of delegation
towards committees. The formation of congressional committees arises from plenary power
possessed by the legislative body for all purposes of civil government.[19] The entire House
or Senate is too large to conduct basic functions, such as to conduct investigations in aid of
legislation, and thus must always use a committee.[20] A bill that is filed in Congress is
always referred for preliminary consideration to the particular congressional committee
which would have specialized competence to examine the merits of the proposed law. Yet,
while the final report of the congressional committee as to the proposed bill may have
persuasive effect on the body as a whole, it is by no means binding. In fact, Congress as a
whole has the power to revive a bill that has been tabled due to unfavorable action by the
congressional committee.[21]
The assailed Rules is premised on realistic considerations that also govern the daily
legislative grind: that owing to the sheer volume of work and the number of legislators, it
would be counterproductive to have every and any preliminary matter to be voted upon
by every member of the House or Senate.
The procedure outlined in the questioned Rules does not in any way contravene Sec. 4,
Article VII of the Constitution. In fact, it strictly adheres to the provision. Under the Rules,
the Senate President opens the certificates of canvass in the presence of the Senate and
the House of Representatives in joint public session.[22] Upon approval by Congress in joint
public session of the Joint Committee report, Congress as one whole body is deemed to
have determined the authenticity and due execution of the certificates and canvassed the
certificate of votes.
Third, the questioned Rules does not emasculate the representatives who are not members
of the Joint Committee since the Rules specifically provides avenues for each member of
Congress to voice out any dissent to the opinions and conclusions of the Joint Committee.
Petitioner will be entitled to avail of all his legislative privileges and exert his persuasive
powers during that time certain when the Congress as a whole would deliberate on and
approve the Joint Committee's resolution of any question involving a certificate of
canvass [23], the final report of the Joint Committee[24], and the resolution proclaiming the
President and VicePresidentelect.[25]
In light of my earlier discussion, petitioner's fourth argument hardly bears discussion.
Contrary to his claim, Congress did not abdicate from its constitutional duties to canvass
the presidential and vicepresidential elections. The Joint Committee canvass is merely a
preliminary canvass, with the final canvass results subject to approval by the entire
Congress.
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These are the only issues for resolution before the Court, and they can be concisely
dispensed with. Given the scope and limitations of these issues presented before us, it
would be improvident of this Court to discuss issues which are not raised, or to
engage in a "preemptive strike" based on speculative musings that in its wisdom,
Congress will be misguided by erroneous principles in the future conduct of its
canvass. By doing so, this Court will act in excess of its jurisdiction, by ruling upon
matters which have not been duly raised before us. The Court does not issue advisory
opinions.[26] This holds true, especially in the face of temptation to dictate to a coequal
branch how it should act, despite the absence of any justiciable question that would
warrant such intrusion.
In fine, it is not the business of the Court to dictate on Congress as to how it should
perform its task as the national canvassing board, as its mandate was derived from no less
than the fundamental law. Should it fail to fulfill its mandate, it is accountable not to this
Court, but to the sovereign people.
Of course, there are laws which governs the conduct of the national canvass. Republic Act
No. 7166, passed in 1991, is one such law. Section 15 thereof provides:
Sec. 15. Preproclamation Cases Not Allowed in Elections for President, Vice
President, Senator, and Members of the House of Representatives. — For
purposes of the elections for President, VicePresident, Senator and Member of
the House of Representatives, no preproclamation cases shall be allowed on
matters relating to the preparation, transmission, receipt, custody and
appreciation of election returns or the certificates of canvass, as the case may
be. However, this does not preclude the authority of the appropriate canvassing
body motu propio or upon written complaint of an interested person to correct
manifest errors in the certificate of canvass or election returns before it
It is clear that Section 15 of Republic Act No. 7166 prohibits preproclamation cases in
elections for President and VicePresident. This would extend to questions pertaining to the
appreciation of election returns or certificates of canvass. The only exception would be to
correct manifest errors in the certificate of canvass. The Court in Chavez v. COMELEC[27]
defined "manifest errors" as those that must appear on the face of the certificates of
canvass or election returns sought to be corrected, and an objection thereto must have
been made before the board of canvassers and specifically noted in the minutes of their
respective proceedings. For the purpose of the presidential/vicepresidential canvass, the
Court's definition in Chavez must be qualified, since Section 4, Article VII of the
Constitution mandates that Congress inspect only the certificates of canvass. Verily, I
submit that such manifest errors which may be corrected only pertain to the certificates of
canvass in the case of presidential and vicepresidential elections.
The Court, through Justice Puno, explained the reason for Section 15 in Sandoval v.
COMELEC:
The prohibition aims to avoid delay in the proclamation of the winner in the
election, which delay might result in a vacuum in these sensitive posts. The law,
nonetheless, provides an exception to the exception. The second sentence of
Section 15 allows the filing of petitions for correction of manifest errors in the
certificate of canvass or election returns even in elections for president, vice
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president and members of the House of Representatives for the simple reason
that the correction of manifest error will not prolong the process of
canvassing nor delay the proclamation of the winner in the election. This
rule is consistent with and complements the authority of the COMELEC under the
Constitution to, "enforce and administer all laws and regulations relative to the
conduct of an, election, plebiscite, initiative, referendum and recall" and its
power to decide, except those involving the right to vote, all questions affecting
elections.[28] (emphasis supplied)
The limitations imposed on the national board of canvassers are thus clear. The question
which must be resolved by the canvassers is whether there is prima facie basis for
the proclamation of the president and the vicepresident. Matters which may be
inquired into through a preproclamation protest, as laid down in Section 243 of the
Omnibus Election Code, are not justiciable by Congress acting as the Board of Canvassers.
[29]
Populist arguments aside, there are fundamental policy considerations why Congress is
proscribed by law from entertaining preproclamation controversies, or inquiring into the
intrinsic validity of the certificates of canvass. First, there is the abhorrence of vacuum in
the "sensitive posts"[30] of President and VicePresident. The Constitution provides that
the term of office of the president shall begin on the thirtieth day of June.[31] While the
Constitution provides for contingencies should no president be proclaimed before that date,
all efforts should be exerted to avoid these "emergency provisions" from coming into play,
as they would necessarily affect political stability. In fact, the June 30th "deadline" should
be appreciated by Congress as an imperative that should guide the body in the formulation
of the rules for canvassing.
There is also the fact that the Supreme Court is mandated by the Constitution as the sole
judge of all contests relating to the election, returns, and qualifications of the President or
VicePresident.[32] As the eminent constitutionalist Justice Vicente V. Mendoza has
explained:
Third is the policy underlying the prohibition against preproclamation cases in
elections for President, Vice President, Senators and members of the House of
Representatives. The purpose is to preserve the prerogatives of the House of
Representatives Electoral Tribunal and the other Tribunals as "sole judges"
under the constitution of the election, returns and qualifications of members of
Congress of the President and Vice President, as the case may be. (citations
omitted) [33]
It is clear that such questions in the province of the Supreme Court to decide in its
capacity as the sole judge of election contests for the presidency and vicepresidency are
distinct from those within the mandate of Congress as the canvassing body. They include
the appreciation of election returns and questions pertaining to the intrinsic validity of the
certificates of canvass. The power to be the "judge of contests relating to the election,
returns, and qualifications" of any public officer is essentially judicial, and as such, under
the principle of separation of powers, it belongs exclusively to the judicial department,
except only insofar as the Constitution provides otherwise.[34]
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I VOTE to DISMISS the petition.

[1] See e.g., Marbury v. Madison, 1 Cranch 137 L. ed [1803].
[2] Angara v. Electoral Commission, 63 Phil. 139.
[3] "The United States Constitution... does not explicitly grant the judicial review power
asserted in Marbury." K. Sullivan & G. Gunther, Constitutional Law 13, 14th ed. (2001). See
also L. Tribe, American Constitutional Law 207, 3rd ed. (2000). "Although the Constitution
is silent as to whether federal courts have [the authority for judicial review], the power has
existed ever since Marbury". E. Chemerinsky, Constitutional Law: Principles and Policies
39, 2nd ed., (2002). U.S. Supreme Court Justice Byron White has been on record in opining
that it was the U.S. Constitution, and not Marbury v. Madison that created judicial review in
the United States.
[4] "When [judicial] supremacy is invoked, it compels the errant branches of government to
obey not the Supreme Court, but the Constitution." Francisco v. House of Representatives,
G.R. Nos. 160261, etc., 10 November 2003, J. Tinga, concurring.
[5] Generally, political questions are concerned with issues dependent upon the wisdom,
not the legality, of a particular measure Tañada v. Cuenco, 100 Phil. 101 [1957], as cited in
Tatad v. Secretary of Finance, 346 Phil. 321.
The formulation made in Baker v. Carr by the late American Supreme Court Justice William
Brennan as to what constitutes a political question has long gained a foothold both in the
United States and in the Philippines. "Prominent on the surface of any case held to involve
a political question is found a textually demonstrable constitutional commitment of the
issue to a coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of deciding without an initial
policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a
court's undertaking independent resolution without expressing lack of the respect due
coordinate branches of government; or an unusual need for unquestioning adherence to a
political decision' already made; or potentiality of embarrassment from multifarious
pronouncements by various departments on one question." Baker v. Carr, 369 U.S. 186,
217. (1962)
[6] "Judicial power includes the duty of the courts of justice xxx to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the government." See Article VIII, Section
1, Constitution, in relation to Baker v. Carr, supra note 5.
[7] See, e.g., Marcos v. Manglapus, G.R. No. 88211, 15 September 1989, 177 SCRA 668.
[8] See e.g., Javellana v. Executive Secretary, 151A Phil. 35 (1973).
[9] "The returns of every election for President and VicePresident xxx shall be transmitted
to the Congress xxx and the Congress, upon determination of the authenticity and due
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execution thereof in the manner provided by law, canvass the votes." See Section 4,
Article VII, Constitution.
[10]Petition, p. 9.
[11] Id. at 10.
[12] The essential of the legislative function is the determination of the legislative policy
and its formulation and promulgation as a defined and binding rule of conduct. Occeña v.
COMELEC, G.R. No. L2265, 28 January 1980, citing Yakus v. United States 321 US 414, 88
L. ed. 834.
[13] See K. Sullivan and G. Gunther, Constitutional Law 351, 14th ed. (2001) "The
nondelegation doctrine forces a politically accountable Congress to make the policy
choices, rather than leave this to unelected administrative officials." E. Chemerinsky,
Constitutional Law: Principles and Policies 2nd ed 319 (2002).
[14] The Congress shall promulgate its rules for the canvassing of the certificates." Par. 6,
Sec. 4, Article VII, 1987 Constitution.
[15] In fact, the 2nd paragraph of Section 13 of the Rules quite baldly states: "The Joint
Committee shall, upon determination of the authenticity and due execution of the
certificates of canvass, preliminarily canvass the votes of candidates for the offices of
President and VicePresident.
[16] See Secs. 19, 23 and 24, Congressional Rules of Canvass.
[17] See Section 24, Congressional Rules of Canvass.
[18] Congress has the constitutional power to adopt rules for its proceedings, and by
legislative practice it is conceded the power to promulgate such orders as may be
necessary to maintain its prestige and to preserve its dignity. SeeVera v. Avelino, 77 Phil.
192, 212. (1946)
[19] See Fernando and Fernando, Jr., Separation of Powers: The Three Departments of the
Philippine Government 205 (1985).
[20] See E. Chemerinsky, Constitutional Law: Principles and Policies 2nd ed 303 (2002).
[21] See Fernando and Fernando, Jr., Separation of Powers: The Three Departments of the
Philippine Government 205 (1985).
[23] See Section 19, Congressional Rules of Canvass
[24] See Section 23 and 24, Congressional Rules of Canvass
10/15/2016 [ G.R. No. 163556, June 08, 2004 ]
[26] Guingona v. Court of Appeals, G.R. No. 125532, 10 July 1998, 292 SCRA 402, 413;
Tolentino v. Secretary of Finance, G.R. Nos. 115455, 25 August 1994, 235 SCRA 630, 686;
De la Llana v. Alba, G.R. No. L57883, 12 March 1982, 112 SCRA 294, 385, Plana, J.,
concurring and dissenting.
[27] Chavez v. COMELEC, G.R. No. No. 105323, 3 July 1992, 211 SCRA 315, 322.
[28] 380 Phil. 375, 389390 (2000).
[29] Section 243 of the Omnibus Election Code states:
243. Issues that may be raised in preproclamation controversy. The following
shall be proper issues that may be raised in a preproclamation controversy:
(a) Illegal composition or proceedings of the board of canvassers;
(b) The canvassed election returns are incomplete, contain material defects,
appear to be tampered with or falsified, or contain discrepancies in the same
returns or in other authentic copies thereof as mentioned in Sections 233, 234,
235, and 236 of this Code;
(c) The election returns were prepared under duress, threats, coercion, or
intimidation, or they are obviously manufactured or not authentic; and
(d) When substitute or fraudulent returns in controverted polling places were
canvassed, the results of which materially affected the standing of the
aggrieved candidate or candidates.
[30] Sandoval v. COMELEC, supra note 28
[31] Article VII, Section 1, par. 1, Constitution.
[32] See Section 4, Article VII, Constitution
[33] RomualdezMarcos v. COMELEC, G.R. No. 119976, 248 SCRA 300, 397; J. Mendoza,
concurring.
[34] Lopez v. Roxas, 124 Phil. 168, 177 (1965).

[ G.R. No. 163556. June 8, 2004 ]
CONGRESSMAN RUY ELIAS C. LOPEZ V. SENATE OF THE PHILIPPINES
(REPRESENTED HEREIN BY THE HON. FRANKLIN M. DRILON, PRESIDENT OF THE
10/15/2016 [ G.R. No. 163556, June 08, 2004 ]
REPRESENTATIVES.

CONCURRING OPINION
CALLEJO, SR., J.:
I concur with the encompassing separate opinion of my esteemed colleague, Mr. Justice
Reynato S. Puno.
I am convinced that Congress, when it acts as the National Board of Canvassers in the
presidential and vicepresidential elections conformably with Section 4, Article VII of the
Constitution, does not merely perform a ministerial function, but exercises quasijudicial
powers when it determines the authenticity and due execution of the certificates of
canvass. In fact, this is one of the substantial changes introduced in the 1987 Constitution.
In his sponsorship speech, Commissioner Lorenzo M. Sumulong, Chairman of the
Committee of the 1986 Constitutional Commission which drafted the Article on the
Executive Department, explained:
The first constitutional change that I will mention is the canvassing of votes for
President and VicePresident. In the 1973 Constitution, the provision on
canvassing of votes for President and VicePresident is as follows:
The returns of every election for President, duly certified by the board
of canvassers of each province or city, shall be transmitted to the
Speaker of the Batasang Pambansa, who shall, not later than thirty
days after the day of the election, and in the presence of the
Batasang Pambansa, open all the certificates, and the votes shall
then be counted.
It will be remembered that many of the certificates of canvass received from
each province and city by the Batasang Pambasa were objected to by the
supporters of Aquino and Laurel. But based on this provision of the 1973
Constitution, after the certificates of canvass had been opened, the Speaker
immediately announced the results of the canvass and proclaimed President
Marcos and Mr. Tolentino as elected President and VicePresident, respectively.
In the Article on the Executive that is submitted for consideration, it is now
provided that after the certificates of canvass had been opened, the counting
and canvassing of votes for the President and VicePresident shall not
immediately be made because, first, there should be a determination of the
authenticity and due execution of the certificates of canvass before the votes
mav be canvassed. That appears in Section 4 of the Article. ...[1]
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The discussion between Messrs. Regalado E. Maambong and Jose N. Nolledo, both
members of the 1986 Constitutional Commission, on this point is, likewise, particularly
instructive:
MR. NOLLEDO. I am referring to the use of the words "upon determination of the
authenticity and due execution thereof on lines 7 and 8, page 2, referring to the
certificates of canvass of the President and VicePresident. Am I right if I say
that because of the use of these words, the duty of the legislature to canvass is
no longer ministerial?
MR. MAAMBONG. Madam President, the word "ministerial" has always been
interpreted by the Supreme Court as applicable to the canvass made by the
National Assembly, and the reason why we did not put the word "ministerial" in
the Article is, it has been understood in Roxas v. Lopez and in other cases.
When we used the words "authenticity" and "genuineness," the question refers
to the problem of whether or not the ministerial function is already non
ministerial. The answer is, it is still ministerial but when we say "authenticity
and due execution," what it really means is that the National Assembly will look
at the certificates of canvass and find out from the face of the document
whether there are flaws in the execution and authenticity of the document. That
is what it means.
there are serious defects in the certificates of canvass as when the seals are
therefore, authenticity appears to be questionable what will happen?
MR. MAAMBONG. The answer to that is in the phrase "in the manner provided by
law." The Committee had to insert the phrase "in the manner provided by law"
so that the legislature itself will find out and will make it very specific as to what
flaws or deficiencies in the certificates of canvass can be taken cognizance of by
the canvassing board of tellers, because as of now, the guiding regulations that
govern the National Assembly, as I mentioned in the Committee, are: the rules
and regulations of the COMELEC, the Omnibus Election Code, the jurisprudence
from the decisions of the Supreme Court. All these things taken together, the
legislature is given a notice by using the phrase "in the manner provided by
law," so that it will make a determination now of what are the points which the
board of tellers can take cognizance of, because it is not very clear right now
under the laws and regulations, and as a matter of fact, that was one of the
controversies which arose during the canvassing of the votes of President
Aquino and former President Marcos in the last Batasan.[2]
A purely ministerial act or duty is one in which an officer or tribunal performs in a given
state of facts, in a prescribed manner, in obedience to the mandate of legal authority,
without regard to or the exercise of his own judgment, upon the propriety of the act done.
[3] As my esteemed colleague, Justice Jose C. Vitug, in his separate opinion in Romualdez
Marcos v. Commission on Elections,[4] succinctly put it, "a ministerial duty is an obligation
the performance of which, being adequately defined, does not allow the use of further
judgment or discretion." Congress, as the sole body tasked to canvass the votes for the
10/15/2016 [ G.R. No. 163556, June 08, 2004 ]
President and VicePresident, is mandated to make a "determination of the authenticity
and due execution" of the certificates of canvass before it proceeds to canvass the same.
As such, it cannot be said to perform a purely ministerial function but it exercises a quasi
judicial function as well. It has been said that where a power rests in judgment or
discretion, so that it is of judicial nature or character, but does not involve the exercise of
function of a judge, or is conferred upon an officer other than a judicial officer, it is deemed
quasijudicial.[5]
In this sense, the function of Congress, as the National Board of Canvassers in the
presidential and vicepresidential elections, is akin to that of the municipal, provincial or
city boards of canvassers. These boards of canvassers are said to exercise quasijudicial
powers as they are tasked to determine the due execution and authenticity of the
certificates of canvass or the election returns as the case may be before them:
... We do not discern in the law a purpose to throw the burden on courts where it
is patent as in the case here that tampering of the returns occurred after
they have left the hands of the election inspectors, just to pave the way for the
proclamation of a candidate in whose favor falsification was resorted to. To tie
up the hands of the board of canvassers in the situation here presented is to
wink at a brazen form of wrongdoing to subvert the people's will, and in
mockery crown the loser with victory. Correctly then, canvassers are given
quasijudicial powers to determine whether the return is genuine and to
disregard one which is obviously a forgery. Along parallel lines, this Court, in
Nacionalista Party v. Commission on Elections ..., declared that the canvassing
board could accept as correct those returns transmitted to it "which are in due
form;" that they must "be satisfied of the genuineness of the returns namely,
that the papers presented to them are not forged and spurious;" and that
"where the returns are obviously manufactured, xxx the board will not be
compelled to canvass them.[6]
ACCORDINGLY, I vote to DISMISS the petition.
[1] II RECORDS OF THE CONSTITUTIONAL COMMISSION 385.
[2] Id. at 390391.
[3] Mateo v. Court of Appeals, 196 SCRA 280 (1991).
[4] 248 SCRA 300 (1995).
[5] Sandoval v. Commission on Elections, 323 SCRA 403 (2000).
[6] Espino v. Zaldivar, 21 SCRA 1204 (1967); Salvacion v. Commission on Elections, 170
SCRA 513 (1989). (Underscoring supplied.)
10/15/2016 [ G.R. No. 163556, June 08, 2004 ]
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The distinction made in Lopez v. Roxas [19] was a distinction made between the duties of

Seventh. The primary consideration in determining the authenticity and due execution

MR. MAAMBONG. Madam President, the word "ministerial" has always

"SECTION 15. Preproclamation Cases Not Allowed in Elections for

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The distinction made in Lopez v. Roxas [19] was a distinction made between the duties of

Seventh. The primary consideration in determining the authenticity and due execution

MR. MAAMBONG. Madam President, the word "ministerial" has always

"SECTION 15. Pre­proclamation Cases Not Allowed in Elections for

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"SECTION 15. Preproclamation Cases Not Allowed in Elections for